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1-1-1985
A Neo-Federalist View of Article III: Separating the
Two Tiers of Federal Jurisdiction
Akhil Reed Amar
Yale Law School
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VOLUME 65
NUMBER 2
MARCH 1985
BOSTON UNIVERSITY LAW REVIEW
A NEO-FEDERALIST VIEW OF ARTICLE III:
SEPARATING THE TWO TIERS OF FEDERAL
JURISDICTIONt
AKHIL REED AMAR*
Located at one of the critical joints where the two great structural principles of the Constitution-federalism and separation of powers-intersect,
Article III jurisdiction has been the center of much judicial,I legislative, 2 and
t @ 1985 by Akhil Reed Amar.
* Law Clerk to Judge Stephen Breyer, United States Court of Appeals for the First
Circuit. Assistant Professor of Law Designate, Yale Law School. B.A., Yale University, 1980; J.D., Yale University, 1984. The ideas in this essay benefited from
conversations, with many people-too many to thank individually, at least in print.
Two people, however, must be specifically mentioned. Owen Fiss first got me
thinking seriously about the role of federal courts in our constitutional order-and
about much else, besides-in his breathtaking (Meta)Procedure course. And Burke
Marshall patiently and generously helped me work out my ideas in his rich and
scholarly seminar on American Federalism. This essay is dedicated to them, and to
all my other friends at Yale-students and professors-from whom I have learned so
much, and have so much yet to learn.
' See, e.g., Marbury v. Madison, 5 U.S. (I Cranch) 137 (1803) (discussing congressional power over Supreme Court original jurisdiction); Ex parte McCardle, 74
U.S. (7 Wall.) 506 (1869) (discussing congressional power over Supreme Court
appellate jurisdiction); Sheldon v. Sill, 49 U.S. (8 How.) 440 (1850) (discussing
congressional power over lower federal court jurisdiction); cj' Martin v. Hunter's
Lessee, 14 U.S. (I Wheat.) 304(1816) (discussing the scope of "the judicial Power of
the United States").
2 Among the first, and most significant, achievements of the first Congress was the
enactment of the Judiciary Act of 1789, 1Stat. 73, which set up various federal courts
and regulated their jurisdiction. Since 1789, federal jurisdiction has been a recurrent
congressional concern. For a brief catalogue of the major jurisdictional legislation,
see P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER, HART AND WECHSLER'S
THE FEDERAL COURTS AND THE FEDERAL SYSTEM 32-47 (2d ed. 1973) [hereinafter
cited as HART & WECHSLER]. A more detailed account of many of these congressional enactments may be found in F. FRANKFURTER & J. LANDIS, THE BusiNESS OF THE SUPREME COURT (1928), and Surrency, A History of the Federal Courts,
28 Mo. L. REV. 214 (1963).
Recently, there have been many proposals in Congress to restrict federal court
jurisdiction in politically sensitive areas involving school prayer, school desegrega-
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
academic 3 attention, and even more confusion. Although the nation has thus
far been spared major constitutional confrontations between Congress and
the federal courts, 4 the architecture of Article III remains the subject of
much debate. Probably the two most famous commentators on Article III
jurisdiction, Joseph Story and Henry Hart, contradict each other.' In fact, a
close reading of the literature on Article III suggests that no commentator
thus far has offered a complete, coherent and6 convincing account of congressional power to limit federal jurisdiction.
This essay presents a new interpretation of Article III that refines and
synthesizes earlier commentary by recharting the contours of, and connections between, federalism and separation of powers in federal jurisdiction.
Careful reanalysis of text, history, and structure will show that, although
neither Story nor Hart was completely correct, each contributed important
insights. Justice Story was correct in emphasizing that federal and state
courts are not created equal, and that the mandatory language of Article III
does impose important limits on congressional power to shift cases from
federal to state courts. Professor Hart was right in stressing the importance
of state court general jurisdiction as a necessary backdrop for interpreting
Article III. Thus, following Hart, I seek to establish that the Framers did not
intend to require the creation of lower federal courts; but, following Story, I
shall show that they did require that some federal court-supreme or
inferior-be open, at trial or on appeal, to hear and resolve finally any given
federal question, admiralty, or public ambassador case.
In offering a new synthesis of the old Article III debate, I mean to do more
tion, and abortion. Some of these proposals would restrict only lower federal court
jurisdiction. See, e.g., S. 158, 97th Cong., 1st Sess. (1981) ("Human Life" Bill
restricting jurisdiction of inferior federal courts to entertain injunctive and declaratory actions challenging state abortion laws, but leaving Supreme Court appellate
jurisdiction intact); H.R. 900, 97th Cong., Ist Sess. (1981) (same bill). Other proposals seek to oust all federal jurisdiction. See, e.g., S. 1742, 97th Cong., 1st Sess. (1981)
(eliminating all federal court jurisdiction over cases attacking voluntary prayer in
public schools). See generally Baucus & Kay, The Court Stripping Bills: Their
Impact on the Constitution, the Courts, and Congress, 27 VILL. L. REV. 988, 992
n.18 (1982) (collecting recent jurisdiction-stripping proposals).
I A useful bibliography of the scholarly literature up to 1981 may be found in
Constitutional Restraints Upon the Judiciary:Hearings Before the Subcomm. on the
Constitution of the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 135 (1981)
("Bibliographic Note" compiled by William Van Alstyne). A compilation of more
recent literature may be found in Gunther, CongressionalPower to CurtailJurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L.
REV.
895, 896 n.3
(1984).
See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (averting constitutional
crisis); cf. Marbury v. Madison, 5 U.S. (I Cranch) 137 (first congressional statute
failing judicial review was a jurisdictional statute).
- See infra notes 13-47 and accompanying text.
4
6
See infra notes 48-85 and accompanying text.
19851
NEO-FEDERALIST VIEW
than simply set the historical and scholarly record straight on arcane and
antiquarian issues of jurisdiction. Many of these issues lie at the center of
current policy debates over the proper roles of the state and federal courts in
protecting the rights guaranteed by the Constitution and laws of the United
States. Some commentators and policymakers have argued for expansive
federal court supervision of federal rights; others seek to move ever more of
the responsibility for safeguarding these rights to the state courts. My
broader aim here, therefore, is to reorient current understandings of the role
of federal courts in the constitutional system our Federalist forefathers
bequeathed us. By setting forth a comprehensive interpretation of Article III
that rediscovers and reclarifies first principles of federal jurisdiction in our
constitutional system, I hope to show that those who seek to shunt the
ultimate protection of federal rights into the state courts have abandoned
those first principles for a brand of "federalism" at war with the interpretivist approach on which they pretend to rely. 7
In placing heavy, if not exclusive, reliance on constitutional text, history, and
structure, 1 seek in this essay to present a quintessentially interpretivist account of
federal jurisdiction. I shall thus rely on conventional interpretivist historical sources
(e.g., the Federalist Papers) and conventional interpretivist rules of construction
(e.g., where possible, all words in the Constitution are to be given effect). Although
conventional legal analysis is, by definition, more common than unconventional
7
analysis, e.g., Note, Choosing Representatives By Lottery Voting, 93
YALE
L.J. 1283
(1984) (presenting legal thought experiment), it requires no less methodological
justification, and thus a few words explaining my choice of approach are appropriate
here.
First, I note that the Article III debate in the scholarly literature has thus far been
waged largely on interpretivist terms, although scholars have been less than uniform
in assigning relative weights to arguments from text, from history (Convention,
ratification, and post-constitutional), and from structure. In seeking a comprehensive
synthesis and resolution of the Article III debate, I have taken the debate as I found
it, and entered it on its own terms.
Second, I believe that an interpretivist resolution of the Article III debate is
possible. Careful reexamination of Article III suggests that its text, history, and
structure are both determinate and mutually-reinforcing. Thus, analysis will suggest
that-unlike so many other constitutional provisions, cf. infra note 169-Article III
does lend itself to one "best" interpretivist reading. See also Carter, Constitutional
Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect
Muddle, 94 YALE L.J. 821 (1985) (interpretivism both more tractable and more
worthwhile when examining separation-of-powers structure of Constitution); cf.
infra note 86.
Third, although I believe that there is more to constitutional law than interpretivism, narrowly understood, I recognize that many other actors in our legal
culture-Congressmen, judges, scholars, and practitioners-subscribe to a narrower
brand of interpretivism. Because I seek to convert them to my vision of federal
jurisdiction, I must speak their language. I have emphasized the many interpretivist
arguments underlying my view of federal jurisdiction instead of the other noninterpretive and more policy-oriented arguments that buttress my views, since the
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
Section I of this essay canvasses various major commentaries on Article
III and suggests their weaknesses." Section II offers a "neo-Federalist"
interpretation of Article III that escapes these weaknesses by returning to
first premises of federal jurisdiction, thereby identifying the scope and
limits of congressional power. 9 This interpretation builds on Story's critical
latter can be casually dismissed by self-proclaimed interpretivists like Senator Helms
or Justice Rehnquist, but the former cannot be.
Fourth, it may be possible to construct a coherent constitutional jurisprudence that
bridges the chasm between a procrustean and necrophilian interpretivism, e.g., R.
BERGER,
GOVERNMENT BY JUDICIARY (1977), and a radically indeterminate non-
interpretivism, e.g., M. PERRY, THE CONSTITUTION, THE COURTS, AND HUMAN
RIGHTS (1982), by viewing the interpretivist Constitution as presumptively binding
law that may nonetheless be modified upon certain special showings, for example, of
changed circumstances-much as hoary case law is presumptively binding upon a
common law court, but may be overruled and updated under various circumstances.
Cf. G.
CALABRESI,
A COMMON
LAW FOR THE AGE OF STATUTES
(1982) (suggesting
that courts treat old statutes like old case law). Such a hybrid jurisprudence, whose
elaboration I hope to attempt in a later essay, obviously requires the sort of careful
interpretivism I shall try to offer here as its starting point for constitutional analysis.
Finally, even if the legal/historical scholarship I shall present in this essay has
absolutely no binding or presumptive legal or political force, I feel obliged to present
it in order to expose some of the important weaknesses of earlier legal/historical
scholarship, which has often failed to capture and accurately re-present the
Federalists' philosophy and world-view. The Federalists were simply extraordinary
people-scholars and statesmen who accomplished one of the few truly successful
revolutions in the history of the planet, and who forged a nation that has not only
endured but thrived. We can learn much by studying these people, and the Constitution that they created and we inherited. Even if the Constitution they built then is not
in any way binding on us now, we must nonetheless choose whether to accept our
constitutional inheritance, in whole or in part. To exercise that choice intelligently,
we must first understand what it is the Federalists thought they were creating. It
would surely be tragic if we rejected our rich constitutional legacy out of sheer
ignorance or misunderstanding of some of the most important structural features of
the Federalist Constitution; it would surely be ironic if our repudiation of our
collective constitutional (birth)rights constituted something less than a knowing and
intelligent waiver.
8 See infra notes 12-85 and accompanying text.
9 See infra notes 86-171 and accompanying text.
In labeling my interpretation as "neo-Federalist," I do not mean to suggest any
affinity to the "New Federalism" championed by Justice Rehnquist-a federalism
emphasizing states rights and the parity of state and federal judges. Indeed, my
purpose is largely to bury, rather than praise, this "New Federalism," by showing
that it precisely inverts the Federalist political science underlying the Philadelphia
Constitution. Rehnquist's vision of federalism is in many ways far closer to Luther
Martin's than to James Madison's or James Wilson's; the "New Federalism" is
largely the old Anti-Federalism masquerading as the original understanding of the
Constitution. See Powell, The Compleat Jeffersonian: Justice Rehnquist and
Federalism, 91 YALE L.J. 1317 (1982).
1985]
NEO-FEDERALIST VIEW
insight that Article Ill contains two tiers of jurisdictional categories. In the
first tier, comprising federal question, admiralty, and public ambassador
cases, federal jurisdiction is mandatory: the power to hear all such cases
must be vested in the federal judiciary as a whole. In the second tier,
My purpose in claiming the "neo-Federalist" label is instead to highlight the
myriad and important connections between 'myscholarship in this essay and other
recent "neo-Federalist" scholarship in law and history, scholarship that seeks to
understand Federalist political theory on its own terms. For my purposes here, the
hallmarks of this scholarship are its emphasis on:
(1) the Federalists' distrust of legislatures;
(2) the Federalists' distrust of state governments;
(3) the Federalists' reliance on federal judges-the "least dangerous branch;"
(4) the Federalists' distinction between the People of the United States, and the
Congress (one of several representatives of the People);
(5) the Federalists' distinction between the national government and Congress (one
of three co-equal branches of that government);
(6) the Federalists' efforts to strengthen the executive and judicial branches of the
national government vis-a-vis Congress;
(7) the critical role of judicial review in Federalist theory; and
(8) the Federalists' reliance on structural mechanisms and institutional incentives
to guarantee virtue among officeholders.
In historical scholarship, the path-breaking work is undoubtedly Gordon Wood's
THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969). Earlier Progressive
historians had sought to discredit the judges of their own era by emphasizing the
anti-democratic nature of judicial review, and of the Constitution itself. See, e.g., C.
BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED
STATES (1913). The Progressive historians tended to equate Congress with "the
People," and thus attacked the deviant role of un-elected federal judges. Wood's
book resurrects Federalist political theory by more faithfully re-presenting the
Federalists' world-view, which included the eight features noted above. See also G.
WILLS, EXPLAINING
AMERICA:
THE
FEDERALIST (1981) (emphasizing features (4)-(8)
noted above).
In legal scholarship, the most important recent work is Ackerman, The Storrs
Lectures: Discovering the Constitution, 93 YALE L.J. 1013 (1984). Ackerman's
critique of Alexander Bickel's challenge to judicial review directly parallels Wood's
response to Progressive historiography. Like Beard, Bickel saw judicial review as
deviant because he equated Congress with "We the People'--the ultimate
sovereigns. Like Wood, Ackerman re-presents Federalist political philosophy's defense of judicial review. For other recent examples re-presenting Federalist political
theory, see Note, The Origins and Original Significance of the Just Compensation
Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985) (discussing Federalists'
distrust of legislatures); Note, A Procedural Approach to the Contracts Clause, 93
YALE L.J. 918 (1984) (discussing Federalists' restrictions on state legislatures); Note,
The Rule of Law and the States: A New Interpretation of the Guarantee Clause, 93
Yale L.J. 451 (1984) (discussing Federalists' restrictions on state governments and
the policing role of federal courts in contradistinction to Congress); Note, A Madisonian Interpretation of the Equal Protection Doctrine, 91 YALE L.J. 1403 (1982)
(discussing Federalists' distrust of state governments).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
comprising categories of cases less critical per se to smooth national government, federal jurisdiction is discretionary with Congress. Section III
demonstrates the basic consistency of this two-tier neo-Federalist model
with the provisions of the Judiciary Act of 1789 and every subsequent
jurisdictional regime. 10 Finally, Section IV sketches the current policy implications, of the neo-Federalist interpretation of Article III, and offers some
policy suggestions. I
I.
A.
THE ARTICLE III DEBATE THUS FAR
The Debate Joined: Joseph Story and Henry Hart
Article III lays out the structure and scope of the federal judiciary in spare
and succinct language:
SECTION 1. The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services a Compensation which
shall not be diminished during their Continuance in Office.
SECTION 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;-to
all Cases affecting Ambassadors, other public Ministers and
Consuls;-to all Cases of admiralty and maritime Jurisdiction ;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of
another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress shall make."2
In the landmark case of Martin v. Hunter's Lessee, 13 Justice Joseph Story
offered an early and influential account of federal jurisdiction. The Court in
Martin was faced with a challenge to its appellate jurisdiction over a case
10See infra notes 172-214 and accompanying text.
" See infra notes 215-19 and accompanying text.
12 U.S. CONST. art. III, §§ 1-2,
13 14 U.S. (1 Wheat.) 304 (1816).
1985]
NEO-FEDERALIST VIEW
originating in the state courts, but presenting a federal question. The Court
held that its jurisdiction had properly been invoked under section 25 of the
Judiciary Act of 1789,14 and that section 25 was constitutional. The case is
known less for this holding, however, than for Story's lengthy exposition on
the nature and scope of the jurisdiction vested in the federal courts by
Article 111. 15
This exposition has generated considerable confusion. Some have interpreted Story to suggest that "Congress must establish lower federal courts
with the fullest possible jurisdiction-something Congress has never
done." 1 6 For example, statutory restrictions have always barred the doors
of federal district courts to various litigants seeking adjudication of diversity
issues or federal questions .7 A related interpretation reads Martin to require
that if lower federal courts are created, they must be vested with plenary
jurisdiction to hear all Article III cases. 8
Such interpretations, however, misread Story's central argument in Martin. Rather than focusing on inferior courts in isolation, Story was concerned
with the jurisdiction of the federal judiciary as a whole. His argument in
Martin can be distilled into three simple premises. First, the judicial power
of the United States must extend to certain cases, and must be vested-in
either original or appellate form--somewhere in the federal judiciary. 19
14
15
Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73.
14 U.S. (1 Wheat.) at 327-52.
16 G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 57 (10th ed.
(1980) (emphasis in original); see also Clinton, A Mandatory View of Federal Court
Jurisdiction:A Guided Quest for the Original Understandingof Article 111, 132 U.
PA. L. REV. 741, 751 n.21 (1984).
17 Diversity jurisdiction in lower federal courts has always been qualified by
minimum dollar amounts. See HART & WECHSLER, supra note 2, at 1051-53. General
"federal question" jurisdiction was not firmly vested in federal district courts until
1875, 18 Stat. 470, and minimum dollar limits on that jurisdictional grant were not
abolished until 1980, see Pub. L. 96-486, § 2(a), 94 Stat. 2369. Even today, a great
many federal questions are outside the scope of district court jurisdiction under 28
U.S.C. § 1331 because they are not presented on the face of a plaintiff's "wellpleaded complaint," but instead arise at a later stage of the litigation. See Louisville
& Nashville R.R. v. Mottley, 211 U.S. 149, 152-53 (1908) (statement of the "wellpleaded complaint" rule). Although these federal questions are generally acknowledged as falling within Article III's "arising under" jurisdictional grant and giving
rise to Supreme Court appellate jurisdiction, they nonetheless fall outside the ambit
of § 1331's statutory "arising under" jurisdictional grant to district courts. See
generally Shoshone Min. Co. v. Rutter, 177 U.S. 505 (1900); Mishkin, The Federal
"Question" in the District Courts, 53 COLUM. L. REV. 157 (1953).
18 See, e.g., Warren, New Light on the History of the Federal Judiciary Act of
1789, 37 HARV. L. REV. 49, 68 (1923).
19 14 U.S. (1 Wheat.) at 331: "But the whole judicial power of the United States
should be, at all times, vested either in an original or appellate form, in some courts
created under its authority." See also 3 J. STORY, COMMENTARIES ON THE CON-
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
Second, there are some cases, such as federal criminal prosecutions, falling
within the mandatory judicial power that could not be heard as an original
matter by state courts. Federal criminal prosecutions were, for Story, "unavoidably ... exclusive of all state authority. ' 20 Any delegation of such
cases to state trial courts, therefore, would impermissibly vest "the judicial
Power of the United States" in non-Article III courts. 21 Third, the Supreme
Court's original jurisdiction could not be expanded to take cognizance of all
such exclusively federal cases. 22 From these three premises, Story deduces
his conclusion: Congress is obliged to establish "one or more inferior
courts" in which "to vest all that jurisdiction which, under the Constitution
is exclusively vested in the United States, and of which the Supreme Court
cannot take original cognizance. ''23
Thus far Story. Yet the conclusion he reaches simply cannot be right:
Article III plainly imposes no obligation to create lower federal courts.
Indeed, it is precisely the contrast between the permissive clause--"such
inferior Courts as the Congress may" ordain-and the mandatory clauses"the judicial Power shall be vested" and "shall extend"-that makes
Story's first premise so compelling. If "shall" means "must," then "may"
has to mean "can, but need not." A further nail in Martin's coffin is
furnished by Henry Hart and Herbert Wechsler: the records of the Constitutional Convention-records unavailable to Story in 1816-clearly reflect a
"Madisonian compromise" to give Congress the choice of creating inferior
24
federal courts or proceeding through state trial courts.
To reject Story's conclusion, however, is not to refute each of his premises; as a logical matter, the invalidity of the former only establishes the
faultiness of at least one of the latter. Hart and Wechsler's historical argument suggests that Story's second premise-that certain federal matters,
such as federal criminal prosecutions, are exclusive of all state authoritycannot stand. If the Constitution invites Congress to decline to create lower
federal courts, then it seems necessarily to contemplate a world where
1696 (1833) ("But it is clear, from the language of the constitution, that,
in one form or the other, it is absolutely obligatory upon congress, to vest all the
jurisdiction in the national courts, in that class of cases at least, where it has declared,
that it shall extend to 'all cases' ") (emphasis in original); cf. Wheaton, A Federalist
of 1789, in The New York American, Aug. 3. 1821 (Court Reporter), reprinted in
STITUTION §
HART
&
WECHSLER,
supra note 2, at 314 n.2 ("So far as Congress may constitution-
ally restrain original jurisdiction as to such cases, they must give that which is
appellate: and appellate jurisdiction where there is no original federal jurisdiction,
must, of course, be exercised on the judgment of the state courts.") (emphasis in
original).
20 Martin, 14 U.S. (1 Wheat.) at 337; see also 3 J. STORY, supra note 19, § 1750.
21 Martin, 14 U.S. (1 Wheat.) at 330-31.
22 Id. at 330.
23 Id. at 331 (emphasis in original).
24 See HART & WECHSLER, supra note 2, at 11-13.
19851
NEO-FEDERALIST VIEW
violations of federal criminal law could be prosecuted in the first instance in
state trial courts. As will become more clear in Section II of this essay,
leaving such cases to the state courts would in no way impermissibly vest
"the judicial Power of the United States" in non-Article III tribunals, so
long as these cases were ultimately appealable to the Supreme Court. To
permit enforcement of federal criminal laws in state trial courts is simply to
recognize the concurrent general jurisdiction of those courts to entertain all
varieties of cases arising under all varieties of laws.
Post-Convention history and case law further undermine Story's second
premise. In The Federalist No. 82 Alexander Hamilton declared himself
of [the] opinion, that in every case in which [state courts] were not
expressly excluded by the future acts of the national legislature, they
will of course take cognizance of the causes to which those acts may
[T]he inference seems to be conclusive that the state
give birth ....
under the
courts would have a concurrent jurisdiction in all cases arising
25
laws of the union, where it was not expressly prohibited.
Beginning in the early 1800s, Congress regularly provided for state court
prosecution of federal criminal cases. 2 6 Despite Story's concerns about the
constitutionality of such statutes 27-especially where they obliged state
courts to entertain suits 28-prosecutions in consenting states were affirmed
by the Supreme Court as early as 1820 in Houston v. Moore. 29 Subsequent
case law has built upon and extended Houston's vision of cooperative
federalism. InClaflin v. Houseman,3 0 the Court held that concurrent state
court jurisdiction to entertain federal causes of action would be presumed
from congressional silence. 31 In Tennessee v. Davis, 32 the Court upheld
No. 82, at 555 (A. Hamilton) (J. Cooke ed. 1961). Hamilton's
rule that concurrent state court jurisdiction is to be presumed in the absence of a clear
congressional statement to the contrary parallels his views on the "concurrent
[legislative] jurisdiction" of state legislatures to impose taxes on all articles other
than exports and imports. See THE FEDERALIST No. 32 (A. Hamilton).
25
THE FEDERALIST
26
See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REv.
545 (1925) (chronicling early history of enforcement of federal criminal laws in state
courts).
27 See 3 J. STORY, supra note 19, § 1750 (arguing that federal criminal jurisdiction
cannot be delegated to state tribunals and questioning the constitutionality of congressional enactments making such delegations).
28 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 615-16, 621-22 (1842) (separate
opinion of Story, J.) (intimating that Congress may not constitutionally require state
judges to enforce Fugitive Slave Law).
29 18 U.S. (5 Wheat.) 1 (1820) (upholding state court jurisdiction to try militiaman
for violation of federal military law). Contra id. at 47 (Story, J., dissenting).
30 93 U.S. 130 (1876).
31 Id. at 136 (concurrent state court jurisdiction to hear case brought under the
Bankruptcy Act of 1867 is permissible where not excluded by express congressional
provision).
32 100 U.S. 257 (1880).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
removal of a state criminal prosecution into federal court, thus exploding
Story's claim that one sovereign in a federal system could not enforce the
penal laws of the other. 33 And in Mondou v. New York, N.H. & H.R.R.
Co., 34 McKnett v. St. Louis & S.F.Ry. Co., 35 and Testa v. Katt, 36 the Court
required state courts to entertain federal suits where they would hear analo37
gous state-law claims.
The unsupportability of Story's second premise should prompt close examination of the other two, yet both survive scrutiny. The third-the unconstitutionality of extending the Supreme Court's original jurisdiction-is
rooted in no less venerable a case than Marbury v. Madison. 38 It also
comports with the least strained reading of the text of Article III. Although
Congress is given explicit power to make exceptions and regulations to the
Court's appellate jurisdiction, it enjoys no similarly explicit power to extend
the Court's original jurisdiction, whose outer boundaries seem fixed by the
39
Constitution itself.
33 Id. at 271 (state murder prosecution against federal officer is properly removable
into federal court); see Warren, supra note 26, at 545, 592-94; Note, Utilization of
State Courts to Enjorce Federal Penal and Criminal Statutes: Development in
Judicial Federalism, 60 HARV. L. REv. 966 (1947).
34 223 U.S. 1 (1911).
35 292 U.S. 230 (1934).
330 U.S. 386 (1947).
Id. at 389-94 (state court with adequate general jurisdiction to hear a claim
arising under state law is not free to refuse enforcement of a similar claim arising
under federal law); 292 U.S. at 232 (state court of general jurisdiction may not
constitutionally refuse to entertain a cause of action arising under federal law while
agreeing to hear causes of action arising under the law of other states); 223 U.S. at
56-59 (rights arising under federal regulations may be enforced, as of right, in the
courts of the states when their jurisdiction, as fixed by local law, is adequate to the
occasion).
38 5 U.S. (1 Cranch) 137 (1803). It is of course the holding of Marbury that the
Supreme Court's constitutionally-defined original jurisdiction may not be enlarged by
Congress. Id. at 176-80.
39 Robert Clinton has recently suggested that the exceptions and regulations
clause may have been designed simply to allocate between the Supreme Court's
original and appellate jurisdiction. Under this thesis, every "exception" to appellate
jurisdiction must be offset by a complementary expansion of original jurisdiction.
The evidence Professor Clinton adduces on behalf of this thesis, however, is terribly
thin. See Clinton, supra note 16, at 778, 793, 827. Clinton fails to offer any textual
argument attempting to square this thesis with the apparent meaning of the words of
the clause-which simply speak of exceptions and regulations to appellate jurisdiction and in no way suggest a power to expand the Supreme Court's seemingly
bounded originaljurisdiction. In the teeth of a more straightforward and less stilted
reading of the text of Article III, Clinton places sole reliance on historical evidence.
The historical evidence that Clinton offers is at best slender. He relies solely on a
side-by-side comparison of two intermediate working drafts of the Philadelphia
Convention's Committee of Detail-drafts that were probably not even made avail36
17
1985]
NEO-FEDERALIST VIEW
Story's first premise-the mandatory character of some federal jurisdictional categories-is more controversial. Yet again, the text is clear: "the
judicial Power of the United States shall be vested" in a national judiciary,
and "shall extend to all cases" in certain enumerated categories-namely,
40
those involving federal questions, admiralty issues, or public ambassadors.
These are words of obligation, paralleling the usage of "shall" in myriad
other sections of the Constitution. 4 1 Unless clearly overruled or modified by
other language of the Constitution, this mandatory language must be given
effect. Story is thus on solid ground on his first and third premises; only the
second-the unconstitutionality of allowing jurisdiction over certain matters
in the state trial courts-fails.
Henry Hart, in his famous Dialogue on congressional control of Article III
jurisdiction, 42 errs in the opposite direction. Hart acknowledges early on
that Congress need not create lower federal courts. 43 In the next breath, he
notes that the exceptions and regulations clause empowers Congress to
restrict the Supreme Court's appellate jurisdiction. 44 Hart appears to be
able to other Philadelphia Convention members, much less to the later state ratifying
conventions. Further, these drafts simply do not support his thesis. Clinton correctly
notes that the first of these drafts did give Congress the power to shift cases from the
Supreme Court's appellate to its original jurisdiction, but that this explicit power
disappeared in the second draft, in which the exceptions and regulations clause made
its initial appearance. From this comparison, Clinton concludes that the exceptions
clause may have been designed to serve the same allocative function as had the
earlier language in the first draft. Yet the inference is at least as strong in the other
direction; the explicit allocative language of the first draft was changed and the
exceptions clause inserted because the Committee intended something different in
the second draft, and sought to prevent additions to the Court's original jurisdiction.
Indeed, the full Convention ultimately rejected a proposal that apparently would
have permitted extensions of Supreme Court original jurisdiction. See infra note 168
(discussing rejection of proposed substitute to the exceptions clause: "In all the other
cases before mentioned the Judicial power shall be exercised in such manner as the
Legislature shall direct.").
Finally, this prong of Clinton's general thesis conflicts with a powerful and unbroken line of congressional exceptions that stretches back to the first judiciary act. See
infra Section III.
40
U.S. CONST. art. III, §§ 1, 2 (emphasis added).
The "shall" language can be read as authorizing, rather than obliging, federal
jurisdiction, but the branch that is thereby empowered is the federal judiciary, not
Congress. Thus, even if the Article III empowerment can be declined by the federal
judiciary, it must be honored by-and is therefore mandatory vis-a-vis-Congress. In
the words of the Martin court: "The language of the [judiciary] article throughout is
manifestly designed to be mandatory upon the legislature." 14 U.S. (1 Wheat.) at 328
(emphasis added); see infra notes 96, 118 and accompanying text.
42 Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An
Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953).
43 Id. at 1363-64.
44 Id. at 1364.
41
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
troubled by the breadth of this power, so he proposes a limit: congressional
exceptions may not vitiate the "essential role" of the Court. 45 Hart acknowledges the indeterminacy of this limit, but finds such indeterminacy
more satisfying than "reading the Constitution as authorizing its own destruction.' '46
For Hart, the lesson to be drawn from these readings of the exceptions and
inferior courts clauses is clear. By combining its power to regulate lower
court jurisdiction and restrict Supreme Court appellate review, Congress
may constitutionally create a gap in federal court jurisdiction such that no
Article III court would be authorized to hear a given set of Article III
cases-even cases presenting issues of constitutional law. This scenario
does not seem to disturb Hart. He draws comfort in part from his "essential
role" limitation, but even more so from the availability of the state courts:
"Inthe scheme of the Constitution [state courts] are the primary guarantors
47
of constitutional rights, and in many cases they may be the ultimate ones."1
Hart's and Story's arguments thus present symmetrical flaws. Story uses
the mandatory clauses of Article III to read the permissive inferior court
clause out of the Constitution. Hart employs the permissive exceptions and
inferior court clauses to sidestep the requirement that the judicial power
shall be vested in federal courts and shall extend to all cases arising under
the Constitution, laws and treaties of the United States.
The Debate Continued: Recent Commentary
B.
1. The Story School
More recent scholarship has tended to compound the mistakes of Story
and Hart. Theodore Eisenberg, a student of the Story school, 48 has argued
45
46
47
Id.
Id.
Id. at 1401; see also id. at 1372-73:
It's hard, for me at least, to read into Article II1any guarantee to a civil litigant
of a hearing in a federal constitutional court (outside the original jurisdiction of
the Supreme Court) if Congress chooses to provide some alternative procedure.
The alternative procedure may be unconstitutional. But, if so, it seems to me it
must be because of some other constitutional provision, such as the due process
clause.
Cj Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1005-06
(1965):
[T]he plan of the Constitution for the courts . . . was quite simply that the
Congress would decide from time to time how far the federal judicial institution
should be used within the limits of the federal judicial power; or, stated differently, how far judicial jurisdiction should be left to the state courts, bound as
they are by [the supremacy clause.] Federal courts, including the Supreme
Court, do not pass on constitutional questions because there is a special function
vested in them to enforce the Constitution or police the other agencies of
government.
48 The terms "Story school" and "Hart school" are used not to suggest personal
1985]
NEO-FEDERALIST VIEW
that the founding fathers believed that all cases listed in Article III would be
heard, either at trial or on appeal, by a federal tribunal. 49 For Professor
Eisenberg, this right was to be safeguarded by an automatic right to appellate
review by the Supreme Court. Since such review is now discretionary,
Eisenberg claims that inferior federal courts must be established to hear at
least some of the cases that the Supreme Court cannot, as a practical matter,
hear itself. Eisenberg's result-the mandatory establishment of lower federal courts-is strikingly similar to Story's, but his path to this end is
different, resting upon the notion that the Supreme Court's appellate jurisdiction was intended by the Framers to be plenary and undiminishable,
notwithstanding the exceptions clause.5 0 But like Story's exposition in Martin, Eisenberg's argument has a fatal flaw: whereas Story reads the permissive inferior court clause out of the Constitution, Eisenberg compounds
error by premising his argument on an interpretation of Article III that strips
discipleship, but rather as constructs that provide a shorthand for the basic positions
in the Article 11I debate. The "Story school," as used here, refers to scholars who,
like Story, believe that Congress is constitutionally required to vest certain categories of Article III cases in Article III courts. The "Hart school" refers to those
scholars who would allow Congress much broader discretion to withdraw jurisdiction
from all federal courts.
49 Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 YALE L.J. 498 (1974).
50 Id. at 508 n.66 (citing J. GOEBEL, HISTORY OF THE SUPREME COURT OF THE.
(1971), for the proposition that the exceptions clause was not
intended to give Congress any real power to restrict the appellate jurisdiction of the
Supreme Court). Others have argued that the exceptions clause was intended only to
limit Supreme Court review of facts. See generally R. BERGER, CONGRESS V. THE
SUPREME COURT 289 (1969); Brant, Appellate Jurisdiction: Congressional Abuse of
the Exceptions Clause, 53 ORE. L. REV. 3 (1973); Merry, Scope of the Supreme
Court's Appellate Jurisdiction: Historical Basis, 47 MINN. L. REV. 53 (1962). The
Berger/Brant/Merry thesis, however, is flatly contradicted by text, history, and
structure. First, the comma after "fact" clearly implies that the "exceptions" power
applies to appellate jurisdiction generally and not simply to facts. This reading is
confirmed by the history both of the exceptions clause-whose operation on the
appellate jurisdiction clause long predated the insertion of the appositive "both as to
law and facts," see 2 M. FARRAND, THE RECORDS OF THE CONSTITUTIONAL
CONVENTION 172-73, 185 (1911)-and the "law and fact" clause itself, which was
inserted to codify the understanding of the Committee of Detail that the appellate
jurisdiction of the Supreme Court would apply to both law and fact. Id. at 431.
Furthermore, the Berger/Brant/Merry thesis is unsupported by the Judiciary Act of
1789, whose exceptions to Supreme Court appellate review were not limited to
questions of fact. See infra Section III (discussing provisions of the Judiciary Act of
1789). Finally, by virtually reading the exceptions clause out of the Constitution, the
Berger/Brant/Merry thesis unduly restricts congressional power to allocate jurisdiction among Article III judges who enjoy structural parity. See infra notes 60-63,
163-71 and accompanying text.
UNITED STATES
BOSTON UNIVERSITY LAW REVIEW
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the exceptions clause of virtually all significance-" Moreover, given Eisenberg's premises, his conclusion is a seeming non sequitur, for he fails to
explain clearly exactly why the principle of automatic Supreme Court review
that he finds in the Constitution is satisfied by substituting inferior federal
court jurisdiction for (now-unattainable) full Supreme Court appellate re52
view of all state court decisions.
Another scholar in the Story tradition, William Crosskey, has attempted
to extend Story's first premise by arguing that every case falling within the
nine jurisdictional categories listed in Article III must be heard-at trial or
on appeal-by a federal court. 5 3 Professor Crosskey's argument, however,
explicitly rejects a critical textual distinction noted by Story himself:
whereas the judicial power shall extend to "all cases" in the first three
categories (defined by subject matter), it need not explicitly extend to "all"
cases in the last six (defined by party),S4 History and structure identify
s Nowhere does Eisenberg seek to reconcile his reading of the exceptions clause
with the strong and unbroken line of congressional exceptions beginning with the
Judiciary Act of 1789. Nor does he discuss the constitutionality of current restrictions
on the Supreme Court's appellate jurisdiction, such as its complete lack of appellate
jurisdiction over diversity cases tried in state courts. Indeed, Eisenberg at times
appears to suggest-quite mistakenly-that the Supreme Court has always enjoyed
plenary appellate jurisdiction. See Eisenberg, supra note 49, at 510, 514-16; cf. infra
Section III (discussing jurisdictional regimes from 1789 to present).
52
Thus, Eisenberg fails to articulate (1)
exactly where-and why-the Constitution
requires that a federal court be open to hear a given case, and (2) why the Supreme
Court's inability to hear all cases on appeal triggers a requirement that some other
federal court-instead of simply some other court, as the Hart school would have
it-be open to hear these cases. This "level of generality" problem, cf. J. ELY,
DEMOCRACY AND DISTRUST 61 (1980), can only be solved by a careful parsing of the
text and structure of Article III, which Eisenberg fails to provide. Although he does
discuss various background understandings of the Federalist Framers, he fails to
identify how those beliefs were crystalized into positive Constitutional law. Moreover, although he flirts with the notion that the Constitution may require that some
federal court be open to hear all federal cases, at trial or on appeal, see Eisenberg,
supra note 49, at 514-15, he ends up approving congressional jurisdictional restrictions that would bar all effective federal review, so long as these restrictions are
"neutral" (such as minimum dollar limits) and designed to maintain the eliteness of
the federal bench. Id. at 515-18. Given Eisenberg's premises, the logic of his "neutrality" exception is far from clear. See Redish & Woods, Congressional Power to
Control the Jurisdiction of Lower Federal Courts: A Critical Review and a New
Synthesis, 124 U. PA. L. REV. 45, 74-75 (1975) (criticizing Eisenberg's logic). In the
end, Eisenberg strikes a sensitive policy balance of various factors, but fails to offer a
rigorous interpretive framework for understanding the textual and structural mandates of Article 1II. Although I share many of Eisenberg's policy views, I hope in this
essay to put them on a firmer doctrinal footing.
" 1 W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE
UNITED STATES 610-20 (1953).
54 See Martin, 14 U.S. (1 Wheat.) a! 334-36; supra notes 19, 40 and accompanying
19851
NEO-FEDERALIST VIEW
crucial differences between the first three categories-concerning federal
questions, admiralty and public ambassadors-and the rest, thus confirming
that the selective omission of the word "all" in the jurisdictional menu was
intentional." Moreover, this distinction is supported by every judiciary act
since the founding of the nation.5 6 Although the federal judiciary has always
had the power to hear all, or virtually all, federal question, admiralty, and
public ambassador cases, it has never, for example, been vested with any7
thing close to plenary diversity jurisdiction.5
" See infra notes 119-59 and accompanying text.
56 See infra Section III (discussing various jurisdictional regimes). Crosskey is not
alone in disregarding the importance of the selective use of "all" in the jurisdictional
catalogue of Article III. Eisenberg's treatment of the nine jurisdictional categories,
for example, is similarly undifferentiated. See Eisenberg, supra note 49, at 515-16
(lumping together diversity and federal question cases). Indeed, with the exception of
Story, no major commentator has recognized the significance of the Framers' careful
use of the word "all" in Article III. Crosskey is unique only in his explicit rejection of
this prong of the Story argument.
57 Robert Clinton has recently published an important new piece of historical
scholarship, whose main argument represents an elaborate restatement of the
Crosskey thesis. See Clinton, supra note 16. Professor Clinton's work, based on an
exhaustive and careful examination of the historical records at Philadelphia and at the
state ratifying conventions, is the font of many important insights, and in myriad
ways strongly supports the neo-Federalist interpretation I shall present here. For
example, Clinton offers much evidence to show that the Federalists intended the
mandatory "shall" language of Article III to impose important limitations on Congress's ability to shift cases from the independent and co-equal national judiciary to
state courts lacking Article III status. Unfortunately, Clinton's work is afflicted by
two major flaws.
First, like Crosskey, Clinton lumps together all nine jurisdictional categories in
Article III; indeed, Clinton does not even appear to be aware of the selective use of
the word "all" in the jurisdictional menu-perhaps because he misreads Story's
argument in Martin, where the selective use is discussed at length. Compare supra
notes 17-19 and accompanying text and infra note 88 with Clinton, supra note 16, at
751 n.21.
Second, Clinton at times places too much reliance on constitutional "legislative
history," even when such history is in conflict with the clear words of the Constitution itself. Thus, in seeking to reconcile his view that the words of the Constitution
require plenary diversity jurisdiction with the many important congressional restrictions on that jurisdiction in the Judiciary Act of 1789, Clinton resorts to a dubious
argument that the widespread questioning of the need for such jurisdiction in the state
ratifying conventions somehow "constructively engrafted onto the Constitution"
additional congressional power to restrict federal jurisdiction over "insignificant"
diversity cases. Id. at 750 n. 18, 840. Elsewhere, Clinton deviates from Crosskey by
tangentially offering a new interpretation of the exceptions clause that would, for all
practical purposes, eliminate all Congressional power to remove cases from the
Supreme Court's appellate jurisdiction-despite a strong and unbroken line of such
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
2. The Hart School
(a) The Nationalist Strain. Other scholars have followed Henry Hart.
Leonard Ratner, for example, has focused on the nationalist strain in the
Dialogue by attempting to give content to Hart's suggestion that congressional exceptions to the appellate jurisdiction of the Supreme Court
must not destroy the Court's "essential" functions. For Professor Ratner,
the constitutional "suprem[acy]" of the Supreme Court requires that it be
open "(1) to provide a tribunal for the ultimate resolution of inconsistent or
conflicting interpretations of federal law by state and federal courts, and (2)
to provide a tribunal for maintaining the supremacy of federal law when it
58
conflicts with state law or is challenged by state authority."
"Essential functions" arguments like Ratner's, however, are particularly
problematic. Based solely on assertions about the necessary structure of the
judiciary, these arguments have little grounding in explicit text or firm
constitutional history. As a consequence, the more specific any purely
structural "essential functions" formulation, the more vulnerable; the less
specific, the less useful and determinate.
Ratner's formulation, for example, reads "suprem[acyl" for all that it
might be worth instead of the least that it must be worth. Uniformity need
not be viewed as a constitutional requirement, but can instead be seen as a
constitutional option committed to the discretion of Congress. 59 Moreover,
exceptions dating back to 1789. Yet even Clinton admits that this novel interpretation
would make the exceptions clause redundant of other language in Article Il-and
bad English besides. Id. at 780. To make matters worse, the "legislative history"
Clinton adduces for this thesis is scanty, resting upon the suspect premise that the
phrase--"with such exceptions as are herein contained'--in one Convention document prepared by Hamilton meant the same thing as a different phrase-'" with such
exceptions . . . as the legislature shall make"-in another Convention document
prepared elsewhere by others. Cf. supra note 39.
By contrast, the neo-Federalist interpretation I shall offer here places primary
reliance on Constitutional text and structure, and uses "legislative history" simply to
confirm that Article III means what it seems to mean. See infra note 86.
"I Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme
Court, 109 U. PA. L. REv. 157, 161 (1960).
19 It is not at all clear that uniformity is a value inherent in the constitutional
structure. For example, the three branches of the federal government need not have
uniform interpretations of the Constitution. Congressmen may (indeed, must, if they
take seriously their oaths of office!) decline to pass any law they deem unconstitutional, even if they believe the Supreme Court would uphold the law. See infra note
67 and accompanying text; see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW 30
(1979); Brest, The Conscientious Legislator's Guide to Constitutional Interpretation,
27 STAN. L. REV. 585 (1975). Similarly, the President may exercise his veto power
over any congressional act he deems unconstitutional regardless of Supreme Court
case law. Section 25 of the Judiciary Act of 1789, whose provisions are generally seen
as casting strong light backwards on the Constitution, is also inconsistent with a
strong uniformity requirement. See infra notes 189-91 and accompanying text.
1985]
NEO-FEDERALIST VIEW
even if the Constitution requires uniformity, Supreme Court review is not
necessary to accomplish that end; the need for a uniform last word does not
require that the Supreme Court always have that word. For example, a
no appeal would lie, would also
national Article III Tax Court, from which
60
achieve uniformity in tax questions.
A related, somewhat ironic, flaw in Ratner's purely structural argument is
its failure to recognize the most important structural feature of Article III,
namely, the structural parity of all Article III judicial officers-Supreme
Court justices and lower federal judges. 61 All are appointed by the President
and confirmed by the Senate; all enjoy life tenure (subject only to impeachment), and the guarantee against diminution of salary. By insisting that only
the Supreme Court can perform certain "essential functions" embodied in
Article III, Ratner reads into that Article a curious rigidity and hierarchy,
and ignores the exceptions clause's clear delegation of power to Congress to
allocate jurisdiction among structurally equal federal courts. 62 Indeed, the
rigidity that Ratner imposes on Article III makes it difficult for him to
account for the jurisdictional regime in place for the first century of our
Nor would such a court necessarily offend the constitutional "suprem[acy]" of
the Supreme Court. The high court would still be "supreme" in that:
(1)it would remain the only court created by the Constitution itself, and whose
establishment is obligatory on Congress, see infra note 93 and accompanying text;
(2) it would remain the only court whose jurisdiction derives from the Constitution
itself, see infra note 168;
(3) it would remain the only court with a constitutionally irreducible core of original
jurisdiction, see infra notes 158-160 and accompanying text; and
(4) it would remain the only court from which no appeal could constitutionally lie.
Thus, the court's "suprem[acy]" could be read to mean that the court must be
"supreme" only if and when it takes jurisdiction. Cf. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to
Professor Sager, 77 Nw. L. REV. 143, 150 (1982) (suggesting that Article III salary
and tenure guarantees apply only "ifand when" Congress chooses to bypass state
courts).
61 See Sager, The Supreme Court, 1980 Term-Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95
HARV. L. REV. 17, 45-57 (1981) (discussing parity of all federal courts in acting as a
check on states); id. at 61-68 (discussing institutional guarantees of competence and
independence of federal judiciary as a whole). Professor Sager's incisive focus on the
structural parity of the federal judiciary allows him to square his version of the
"essential functions" argument with broad congressional power to shift appellate
jurisdiction away from the Supreme Court. See id. at 56-57. Like other "essential
functions" theories, however, Sager's impressive model is vulnerable because it
lacks a firm textual footing.
62 Cf. id. at 56 (positing an "essential functions" theory that places such functions
in the federal judiciary as a whole, thus recognizing the allocative role preserved for
Congress by the exceptions clause).
60
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
constitutional government. Until 1891, the Supreme Court had no general
appellate jurisdiction over criminal cases decided by federal circuit
courts-even when such cases posed the most important of constitutional
issues .63
(b) The States' Rights Strain. Martin Redish's work also builds upon
Hart's Dialogue, but emphasizes its states' rights strain. To Professor Redish, the notion that a state court may end up as the last word on the meaning
of the Constitution comports with the structure of our constitutional government. 64 To prevent unconstitutional encroachments by states, Redish
argues, Article III need not be read as obliging Congress to give plenary
jurisdiction to federal courts but only empowering it to do so. Redish here
analogizes to the preemption doctrine: Congress is empowered by the Constitution to pass laws that displace state legislation, but cannot be required to
do so. The greater congressional power to promote states' rights by refusing
to pass federal laws includes the lesser power to foster cooperative
federalism by passing national laws and providing for exclusive and unreviewable state court jurisdiction. 65 To prevent unconstitutional encroachments by Congress or the President, exclusive and unreviewable state court
jurisdiction is sufficient; state courts are no less independent of these
branches than ig§the national judiciary. Taken to its logical conclusion,
Redish's structural thesis eliminates the need for federal courts: Congress
66
can police the states, and state courts can police Congress.
Though superficially attractive, Redish's argument deeply misapprehends
the structure of the Constitution by conflating issues of separation of powers
and federalism. Unlike the case of federal legislation, where each branch can
effectively veto a law because of scruples about its constitutionality,67 the
63
Congress granted the Court general power to review federal criminal cases by
the Act of Mar. 3, 1891, ch. 517, § 5, 26 Stat. 826, 827. Until two years before that
enactment, the Court's criminal appellate jurisdiction over federal courts was limited
to habeas corpus proceedings and decisions in which the federal circuit court below
was divided on a question of law. See Sager, supra note 61, at 53 n.105.
64 See Redish, supra note 60; Redish, Congressional Power to Regulate Supreme
Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External
Examination, 27 VILL. L. REV. 900 (1982); Redish & Woods, supra note 52.
65 See Redish, supra note 60, at 146-48.
66 Id. at 150-53; Redish, supra note 64, at 912-13.
67 At the federal level, the general structure of the Constitution enables each
branch to nullify a law it deems unconstitutional-Congress by declining to pass it;
the President by vetoing it, declining prosecution under it, or pardoning those
convicted under it; and the courts by exercising judicial review. Of course, there are
limits and exceptions to this general structural feature of one-branch veto in federal
separation of powers. The President's veto may be overridden; conversely, a simple
congressional majority, once having passed a law, cannot repeal it-even if it later
deems the law unconstitutional-without the concurrence of the President. Nevertheless, built into the general structure of the Constitution is a libertarian bias based
1985]
NEO-FEDERALIST VIEW
federal judiciary is the only branch of the national government with its own
independent check against any unconstitutional legislation by states. 68 Indeed, the Constitutional Convention explicitly rejected both congressional
and executive "negatives" over state laws in favor of judicial review by the
69
federal courts.
on checks against laws and in favor of the broadest of the various constructions of the
constitutional right given by the three branches. See THE FEDERALIST No. 73, at
495-96 (A. Hamilton) (J. Cooke ed. 1961):
The oftener the measure is brought under examination, the greater the diversity
in the situations of those who are to examine it, the less must be the danger of
those errors which flow from want of due deliberation, or of those missteps
which proceed from the contagion of some common passion or interest. It is far
less probable, that culpable views of any kind should infect all the parts of the
government, at the same moment and in relation to the same object, than that
they should by turns govern and mislead every one of them ....
The injury
which may possibly be done by defeating a few good laws will be amply
compensated by the advantage of preventing a number of bad ones.
See also id. No. 44, at 305 (J. Madison) (J. Cooke ed. 1961) ("In the first instance, the
success of [congressional] usurpation will depend on the executive and judiciary
departments, which are to expound and give effect to legislative acts .... ").
68 The national judiciary is the only branch that alone may nullify any state
practice deemed unconstitutional. Of course, Congress and the President may jointly
act against a state law they deem unconstitutional by respectively enacting and
signing legislation preempting the offending state law. In exceptional circumstances,
Congress may pass such a law even without the President's signature, by a 2/3
supermajority in each chamber. Even in these instances, however, the powers of the
nonjudicial branches are limited to those substantive areas where Article I explicitly
grants power to the legislature. Many unconstitutional state practices-a law impairing the obligation of intrastate contracts, for example-might not be remediable by
preempting national legislation. See The Civil Rights Cases, 109 U.S. 3, 12 (1883)
(contracts clause "did not give to Congress power to provide laws for the general
enforcement of contracts").
69 For state legislation, James Madison sought to replicate the one-branch veto
structure by providing Congress, the national executive, and the national judiciary
each with a negative on state laws. His original resolutions, introduced at the
Convention by Edmund Randolph, provided that the national legislature would have
the power "to negative all laws passed by the several States, contravening in the
opinion of the National Legislature, the articles of Union," and that the national
executive council would command a defeasible veto over "every act of a particular
Legislature." 1 M. FARRAND, supra note 50, at 21. In a similar vein, Alexander
Hamilton's proposed constitution provided that "the better to. prevent [passage of
state law contrary to the federal constitution or laws] the Governour or president of
each state shall be appointed by the General Government, and shall have a negative
upon the laws about to be passed in the State of which he is Governour, or President." Id. at 293. The Convention ultimately rejected these proposals, instead
making judicial review over the states by the national judiciary the centerpiece of
their plan to assure state compliance with the Constitution. See infra notes 71-83,
134-46 and accompanying text.
BOSTON UNIVERSITY LAW REVIEW
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Redish wrongly equates one branch of the federal governmentCongress-with the whole. Article I of the Constitution confers only the
federal legislative power upon Congress. Yet by suggesting that Congress
may, in its unfettered discretion, determine whether or not to extend to the
federal judiciary the power to police the states, Redish would allow Congress to deny the exercise of a power constitutionally delegated to the
federal judiciary. Congress may no more waive the Article IIjudicial power
of federal judges to strike down unconstitutional state conduct in the course
of adjudicating all federal question cases than it may waive the Article II
executive power of the President to grant pardons or command state militias.
In short, Congress cannot waive powers conferred by the Constitution upon
other, equal and independent, branches. In cases posing issues of constitutional law, Redish's preemption analogy is sorely misplaced: since Congress
did not create the Constitution, it cannot oust the constitutionally-prescribed
role of the national judiciary to decide all cases arising under that document.
70
The Framers' preference for judicial control over the states is not hard to
understand: they expected Congress to be excessively vulnerable to state
72
7
pressures, parochial interests, and the passions of temporary majorities.
Although Madison was unsuccessful in replicating the one-branch veto structure
for state legislation, he and other Framers had good reason to believe that if only one
branch should have a unique check against unconstitutional state legislation, that
branch should be the national judiciary, not Congress. Although the political and
parochial nature of the House, Senate and President would render them heavily
dependent on local authorities, 3 M. FARRAND, supra note 50, at 134 (letter from J.
Madison to T. Jefferson), "'the Judicial authority, under our new system [would]
keep the States within their proper limits." Id.; see also infra note 71 (discussing THE
FEDERALIST Nos. 45 & 46). Sophisticated Anti-Federalists also recognized this.
"Col. Taylor regarded the controul of the Fedl. Judiciary over the State laws as more
objectionable than a Legislative negative on them." 3 M. FARRAND, supra note 50, at
524 (letter from J. Madison to W.C. Rives).
70 Redish's preemption argument makes for an exceedingly curious criticism of
Lawrence Sager's thesis that there must be an Article III court open to hear every
case raising constitutional questions. See Sager, supra note 61, at 67. Redish
criticizes Sager for limiting his thesis to cases posing constitutional issues, see
Redish, supra note 60, at 148, while simultaneously seeking to discredit Sager with a
preemption analogy that only works, if at all, for nonconstitutional issues. Even for
nonconstitutional cases, Redish's argument is fatally flawed because the greater
congressional power to pass a law does not subsume the lesser power to pass a law
conditioned with a requirement of unreviewable adjudication in state court. See infra
note 150.
7' See THE FEDERALIST No. 45, at 311 (J. Madison) (J. Cooke ed. 1961):
The State Governments may be regarded as constituent and essential parts of the
federal Government .... Without the intervention of the State Legislatures, the
President of the United States cannot be elected at all, They must in all cases
have a great share in his appointment, and will perhaps in most cases of
1985]
NEO-FEDERALIST VIEW
To have expected Congress alone to police state legislators-who would,
after all, directly select the Senate and whose electors would automatically
decide all House races 7 3-would be to have expected a political and (predictably) parochial sentry to guard the vault of constitutional rights from
political and parochial state legislators. The Constitution's nobility, 7 4 attainder, 75 and ex post facto 76 clauses were applied to both Congress and state
legislatures, because the Framers feared that all legislatures-including
Congress-would be susceptible to similar majoritarian diseases. 7 7 Only
federal judges would enjoy the independence, detachment and competence
78
to disregard the flames of faction and the passions of temporary majorities.
themselves determine it. The Senate will be elected absolutely and exclusively
by the State Legislatures. Even the House of Representatives, though drawn
immediately from the people, will be chosen very much under the influence of
that class of men, whose influence over the people obtains for themselves an
election into the State Legislatures. Thus each of the principal branches of the
federal Government will owe its existence more or less to the favor of the State
Governments, and must consequently feel a dependence, which is much more
likely to beget a disposition too obsequious, than too overbearing towards them.
See also THE FEDERALIST No. 46, at 318 (J. Madison) (J. Cooke ed. 1961): "A local
spirit will infallibly prevail much more in the members of Congress, than a national
spirit will prevail in the Legislatures of the particular States."
72
See
THE FEDERALIST
No. 48, at 333-34 (J. Madison) (J. Cooke ed. 1961):
The legislative department is everywhere extending the sphere of its activity,
and drawing all power into its impetuous vortex.
[I]n a representative republic ... where the legislative power is exercised
by an assembly, which is inspired by a supposed influence over the people with
an intrepid confidence in its own strength; which is sufficiently numerous to feel
all the passions which actuate a multitude; yet not so numerous as to be
incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people
ought to indulge all their jealousy and exhaust all their precautions.
Cf. THE FEDERALIST No. 78, at 522 (A. Hamilton) (J. Cooke ed. 1961) (federal
judiciary will be "least dangerous to the political rights of the constitution").
73 U.S. CONST. art. I, § 2, cl. 1.
74 Id. art. 1, § 9, cl. 8; id. art I, § 10, cl. 1.
75 Id. art. I, § 9, cl. 3: id. art I, § 10, cl. 1.
76 Id. art. I, § 9, cl. 3; id. art 1, § 10, cl. 1.
77 See THE FEDERALIST Nos. 46, 48 (J. Madison) (applying lessons of state
legislative experience to discussion of federal legislature); 2 M. FARRAND, supra note
50, at 110 (remarks of James Madison) (to similar effect); id. at 78 (remarks of George
Mason) (to similar effect); see also G. WOOD, supra note 9, at 403-09, 430-63
(discussing Federalists' distrust of legislatures); R. BERGER, supra note 50, at 8-22 (to
similar effect).
78 THE FEDERALIST No. 78, at 527-29 (A. Hamilton) (J. Cooke ed. 1961):
"[I]t is not to be inferred ... that the representatives of the people, whenever a
momentary inclination happens to lay hold of a majority of their constituents
incompatible with the provisions in the existing constitution, would on that
account be justifiable in a violation of those provisions ....
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Thus, in discussing the evils to be prevented by Article III judicial review,
Hamilton specifically singled out two in his famous Federalist No. 78: the
bill of attainder and the ex post facto law. Because the Framers viewed these
evils as generic legislative diseases requiring specific restrictions on the
powers of both state and national legislatures, 79 they obviously did not trust
one legislature (Congress) to police the others, but instead committed the
task to national judges independent of all legislatures:
By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it
shall pass no bills of attainder, no ex post facto laws, and the like.
Limitations of this kind can be preserved in practice no other way than
through the medium of the courts of justice; whose duty it must be to
80
declare all acts contrary to the manifest tenor of the constitution void.
The reasons for not trusting Congress to police the states are mirrored by
symmetrical reasons for not trusting state court judges to police Congress. In
many cases, the interests of such courts and Congress would not be truly
adverse. Both were likely to be too closely tied to state legislatures8 ' and
That inflexible and uniform adherence to the rights of the constitution and of
individuals, which we perceive to be indispensable in the courts of justice, can
certainly not be expected from judges who hold their offices by temporary
commission. Periodical appointments, however regulated, or by whomsoever
made, would, in some way or other be fatal to their necessary independence.
See also THE FEDERALIST No. 71, at 482 (A. Hamilton) (J. Cooke ed. 1961):
The republican principle .
.
. does not require an unqualified complaisance to
every sudden breeze of passion, or to every transient impulse which the people
may receive from the arts of men, who flatter their prejudices to betray their
interests. ... [Public] guardians [should] withstand the temporary delusion, in
order to give [the people] time and opportunity for more cool and sedate
reflection.
Moreover, above and beyond the issue of judicial independence was the issue of
judicial competence-an Article III value Redish inexplicably ignores. "There is yet
a further and weighty reason for the permanency of judicial offices; which is deducible from the nature of the qualifications they require." THE FEDERALIST No. 78, at
529 (A. Hamilton) (J. Cooke ed. 1961).
79 See supra notes 74-76 and accompanying text.
1o THE FEDERALIST No. 78, at 524 (A. Hamilton) (J. Cooke ed. 1961) (emphasis
added); see also id. at 526 ("[T]he courts of justice are ... the bulwarks of a limited
constitution against legislative encroachments ....
) (emphasis added); 3 J. STORY,
supra note 19, § 1606 ("There can be no security for the minority in a free government, except through the judicial department."); id. § 1608; 3 J. ELLIOT, THE
DEBATES OF THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FED-
(1901) (remarks of John Marshall at Virginia ratifying
convention) ("To what quarter will you look for protection from infringement on the
ERAL CONSTITUTION 553-54
Constitution, if you will not give the power to the judiciary? There is no other body
that can afford such a protection.").
81 In contrast to the elaborate specifications for Article III judges, the Constitution
nowhere specifies how state court judges are to be chosen, what tenure and salary
1985]
NEO-FEDERALIST VIEW
excessively vulnerable to parochial and political pressures. Consider again
two of the Framers' worst fears: congressional enactment of an ex post facto
bill or a bill of attainder. Passage of such a bill would necessarily imply that a
protections they shall enjoy, how independent from state legislators they shall be,
how they may be removed, etc. In the absence of such specifications, there seem to
be no real justiciable limits in the original Constitution to check the politicization of
the state judiciary or its subservience to the legislative branch. See infra notes 102-15
and accompanying text. In 1776, the judiciaries of the several states were rarely
equal, independent and coordinate branches of state governments, but were often
exceedingly dependent on state legislatures. See G. WOOD, supra note 9, at 150-61.
The movement for judicial independence made some progress during the revolutionary period. See id. at 436, 452. Even in 1787, however, it was clear to the Federalists
that "courts constituted like those of some of the states, would be improper channels
of the judicial authority of the union. State judges, holding their offices during
pleasure, or from year to year, will be too little independent to be relied upon for an
inflexible execution of the national laws." THE FEDERALIST No. 81, at 547 (A.
Hamilton) (J. Cooke ed. 1961); see also 2 M. FARRAND, supra note 50, at 27-28
(remarks of James Madison):
In all the states, [State Tribunals] are more or less dependent on the Legislatures. In Georgia, they are appointed annually by the Legislature. In R. Island,
the Judges who refused to execute an unconstitutional law were displaced, and
others substituted, by the legislature, who would be willing instruments of the
wicked & arbitrary plans of their masters.
See also 1 M. FARRAND, supra note 50, at 203 (remarks of Edmund Randolph) (state
executives and judiciaries often only nominally independent of state legislatures).
For further quotations to the same effect, see infra notes 139-45 and accompanying
text.
In some states the lack of structural judicial independence led to the widespread
assumption ofjudicial functions by the legislature itself. See THE FEDERALIST No. 48
(J. Madison); G. WOOD, supra note 9, at 159-61, 407-09, 451-54; Friendly, The
Historic Basis of Diversity Jurisdiction,41
HARV.
L.
REV.
483, 497-98 (1928). Even
today, the situation of state judges is far less secure than that of their federal
counterparts. "[Forty-six] of the 50 states have not provided life tenure for trial
judges who hear felony cases." Palmore v. United States, 411 U.S. 389, 410 (1973).
Even if a state grants its judges lifetime tenure, such judges are still far less secure
than Article III officers, since state statutes and constitutions are far more easily
amended than the federal Constitution. See Sager, supra note 61, at 63 n.149.
Redish, like other members of the Hart School, seeks to use the due process clause
to give meaning to the open textured and undefined concept of "state judge." See
Redish, supra note 60, at 161-66; Redish, supra note 64, at 915-16; see also Hart,
supra note 42, at 1372-73 (quoted supra note 47) (relying on due process clause in
contradistinction to Article Ill). This approach, however, ignores the independent
values embodied in Article III, above and beyond the requirements of due process.
Indeed, in contrast to the precise requirements of structural independence laid down
by Article III (lifetime tenure, salary guarantees, etc.), the due process clause is
singularly fuzzy and indeterminate as to the extent to which a judicial officer must be
independent of the legislature. Cf. Carter, supra note 7 (separation-of-powers clauses
more determinate than due process clause). Moreover, to rely exclusively on due
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majority delegation from at least one state voted for it. The Framers could
hardly have expected the state court judges in that state to be neutral and
detached arbiters of that act's constitutionality, for those judges might well
be excessively dependent on the state legislature whose agents in Congress
were the very individuals pushing for passage. Indeed there was little in the
original Constitution to prevent the state legislature from composing itself
82
into the state "court" that entertained the case.
In a variant of this hypothetical, suppose the state legislature itself first
passed an unconstitutional ex post facto law, and then secured a congressional bill "approving" the law. Once again, the state "court" judging
the constitutionality of the federal approval might have little incentive or
independent institutional will to restrain this species of congressional encroachment upon the Constitution. Although congressional approval can
cure some conduct by state legislatures that would otherwise be
unconstitutional-cases involving preemption, intergovernmental immunity,
imposts on imports and exports, duties on tonnage, interstate compacts, and
burdens on interstate commerce are examples-Congress has no general
constitutional authority to forgive all otherwise unconstitutional action by
states. By viewing Congress as a sufficient policeman over states in all
constitutional cases, Redish confuses the preemption and dormant com83
merce clause exceptions for the structural rule of the Constitution.
Redish's misunderstanding of constitutional structure is paralleled by a
misreading of the text of Article III. Indeed, Redish offers the most dramatic
illustration of the Hart school's divide-and-conquer approach to Article III,
in which the inferior court and the exceptions clauses are jointly deployed to
process to derive a constitutional minimum of independent, nonpolitical adjudication
is to posit a truly radical deficiency in the original Constitution, which, of course, had
no due process clause. Thus, contrary to the dramatic finale of Hart's Dialogue, "all
the important answers" could not have been "clear ever since September 17, 1787."
Hart, supra note 42, at 1401. Hart suggests that if Congress were to abolish lower
federal courts and eliminate the Supreme Court's appellate jurisdiction, state courts
would automatically fill the breach. Under Hart's logic, however, the only thing that
would prevent Congress from also ousting state court jurisdiction is his interpretive
gloss on the due process clause that there be some court open to hear every
constitutional question. Id. at 1372. Yet the due process clause was not made part of
the Constitution until 1791.
82 See supra note 81.
83 Cf. infra note 133 (discussing structural differences between areas where Congress may cure otherwise unconstitutional conduct, and areas where it may not). It
should also be noted that Congress enjoys power under the "republican guarantee"
clause, U.S. CONST. art. IV, § 4, to restructure state governments it deems "unrepublican." See Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867) (congressional invocation of republican government power to uphold Reconstruction Act). Congress's
potential ability to restructure state courts under this grant of power-whose exercise
is generally not justiciable in federal courts, see Baker v. Carr, 369 U.S. 816 (1962)is further reason for rejecting the Hart school's thesis that state courts can always be
trusted to be sufficiently independent of Congress.
1985]
NEO-FEDERALIST VIEW
outflank the mandatory "shall be vested" and "shall extend" provisions.
For Redish, any interpretation of Article III requiring that some cases be
ultimately decided by federal judges is fatally hooked on the horns of a
textual dilemma: "either the clear history and language concerning Congress's power over lower court jurisdiction or the equally clear language
about Congress's power to make exceptions to the Supreme Court's appellate
jurisdiction would have to give way. ' 84 The "shall" language of Article III
apparently falls in an interpretive blind spot: "At no point, of course, does
Article III expressly state that there exists a right to an Article III forum in
constitutional cases." 85 The obvious tension between the clear words of
Article III and these assertedly self-evident observations of a respected
constitutional scholar suggests a serious need to go back to first principles of
text, history, and structure.
II.
ARTICLE
III: A
NEW SYNTHESIS
Article III presents a set of precise and interconnected requirements. To
understand fully the purport and operation of the Article, we must disassemble it into its several working parts. Once the individual components are
examined and understood, we may piece them together and so obtain a
coherent interpretation of the entire Article. The results of this dissection
and reassembly can be summarized as follows:
First, Article III vests the judicial power of the United States in the federal
judiciary, and not in state courts, or in Congress. Second, the federal
judiciary must include one Supreme Court; other Article III courts may-but
need not-be created by Congress. Third, the judicial power of the United
States must, as an absolute minimum, comprehend the subject matter jurisdiction to decide finally all cases involving federal questions, admiralty, or
public ambassadors. Fourth, the judicial power may-but need not-extend
to cases in the six other, party-defined, jurisdictional categories. The power
to decide which of these party-defined cases shall be heard in Article III
courts is given to Congress by virtue of its powers to create and regulate the
jurisdiction of lower federal courts, to make exceptions to the Supreme
8' Redish, supra note 60, at 149 (emphasis in original). The logic of Redish's
argument is curious, for it seems to imply that clear delegations of power to Congress
may never be constrained by other limiting language in the Constitution. Yet Redish
obviously does not subscribe to such an extravagant view. Indeed, his later argument
that due process requires that some court, state or federal, be open to hear all
constitutional claims, Redish, supra note 64, at 915, precisely parallels the logical
structure of the argument he earlier attacks: either Congress's clear power over lower
federal courts or Congress's equally clear power to oust state court jurisdiction, see
The Moses Taylor, 71 U.S. (4 Wall.) 411 (1867), would have to give way. Redish's
mistake is in focusing solely on the limiting language of the due process clause and
ignoring the limiting language of Article III itself. See supra note 81.
'" Redish, supra note 60, at 146.
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Court's appellate jurisdiction, and to enact all laws necessary and proper for
putting the judicial power into effect. Fifth, Congress's exceptions power
also includes the power to shift final resolution of any cases within the
Supreme Court's appellate jurisdiction to any other Article III court that
Congress may create. The corollary of this power is that if Congress chooses
to make exceptions to the Supreme Court's appellate jurisdiction in admiralty or federal question cases, it must create an inferior-federal court with
jurisdiction to hear such excepted cases at trial or on appeal; to do otherwise
would be to violate the commands that the judicial power "shall be vested"
in the federal judiciary, and "shall extend to all" federal question and
admiralty cases.
Tying together the above precepts is Article III's affirmation of the parity
of all federal judges, and its equal and opposite recognition that non-Article
III state court judges do not enjoy such constitutional parity. The structural
mechanisms to assure independence and competence in the federal
judiciary-appointment, confirmation, tenure and salary guarantees, and
impeachment-are the same for all Article III judges, supreme and inferior.
No similar mechanisms are prescribed by the Constitution for state judges.
Lower federal courts may therefore be trusted with the power to resolve
finally federal questions and admiralty issues. State courts may not, although
they may sit as original tribunals in such cases, subject to ultimate review by
86
an Article III decisionmaker.
Of course, it is not my contention that no colorable textual, structural, or
historical arguments can be made on behalf of other interpretations of Article III.
Indeed, if the interpretation offered here were patently self-evident, the nearorthodoxy currently enjoyed by the Hart school would be utterly inexplicable and
mystifying. Rather, it is my aim to establish that, however colorable the arguments
for other interpretations are, they are plainly less colorable than those supporting the
neo-Federalist interpretation of Article III offered here: the neo-Federalist interpretation is plainly more consistent with the text and structure of the Constitution-and
with the historical records of the Federalist Framers at Philadelphia-than any
competing interpretation. The textual mandates of Article III are clear and straightforward; the structure of the constitutional architecture is readily discernible; and the
history-while mixed, as history almost always is-strongly supports the interpretation offered here. To use the language of science, the interpretation offered here,
while not "explaining" all the possible "data," accounts for far more of it than do
competing interpretations, which often do violence to the text and structure of the
Article, and ignore much of its history. Moreover, unlike many other interpretations
of Article III, the neo-Federalist synthesis is determinate yet practical; it lays down
bright-line justiciable rules without putting Congress in a constitutional straightjacket.
One final word about the neo-Federalist historiography I shall present here: in
speaking of the "intent" of the "Framers" and the "political science" of the
"Federalists," I do not mean to suggest that all supporters of the Constitution
unanimously subscribed to a hermetically-sealed corpus of "Federalist" tenets. The
discovery of a group "intent" is almost always a simplifying reification; individuals
have intents but groups do not. Indeed, a group composed of rational individuals with
86
19851
A.
NEO-FEDERALIST VIEW
Establishing a Co-Equal National Judicial Branch
"The judicial Power of the United States, shall be vested in one Supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish." ' s7 These opening words of Article III are rich with
meaning. First, they establish that the judicial power of the United States
must be vested in the federal judiciary as a whole."8 The mandatory vesting
rational transitive preferences may, as a group, have an irrational, intransitive intent.
See generally K.
ARROW,
SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963).
In re-presenting and expounding the "Framers' " or the "Federalists' " intent, I am
thus deliberately imposing order on mild chaos by emphasizing the main tenets of
"Federalist political science" that most important Federalists espoused-especially
those Federalists like James Madison, James Wilson, and Alexander Hamilton, who
had done the most systematic rethinking of republican political theory and who
played the most active public role in shaping and defending the new Constitution.
Finally, I should note that the history I shall present at all points supplements and
supports, rather then displaces, the plain textual and structural features of the
Constitution itself-which in many respects crystallized and canonized Federalist
political theory, translating Federalist ideology into positive law. Cf. supra notes 39,
57.
87
U.S. CONST. art III, § 1.
For an exhaustive historical demonstration that the Framers generally used
"shall" as a word of obligation, see generally Clinton, supra note 16.
The repetition of the word "in" in the opening sentence of Article III could be
interpreted to mean that the full judicial power of the United States must be vested in
the Supreme Court alone, and must also be fully vested in inferior federal courts.
This interpretation is very close to the position sometimes ascribed to Joseph Story.
See supra notes 16-18 and accompanying text. But see Martin, 14 U.S. (1 Wheat.) at
331; 3 J. STORY, supra note 19, § 1591 (lower federal courts need not be vested with
the entire quantum of Article III jurisdiction). Such an interpretation of Article III,
however, is deeply problematic. The "judicial Power" is not simply the power to
speak in the name of the nation-a power that is vested in all Article III judges-but
also comprehends the subject matter jurisdiction to decide all cases in certain categories. See infra notes 116-59 and accompanying text. Any interpretation that the
Supreme Court alone must be endowed with the full judicial power of the United
States would be inconsistent with much of post-constitutional jurisdictional history.
Beginning with the Judiciary Act of 1789, Congress left many important cases falling
within the mandatory judicial power to federal district courts and circuit courts,
whose decisions were often unreviewable by the Supreme Court. See infra Section
III. That Act and subsequent legislation also failed to vest in inferior federal courts
anything close to full jurisdiction over all cases falling within the mandatory "judicial
power." See supra note 17. As this post-constitutional history suggests, to require
that each Article III court enjoy the full range of mandatory Article III jurisdiction is
to read into that Article an uncompromising rigidity.
A further problem with any interpretation requiring that plenary judicial power be
vested in each federal court is that such an interpretation would require inferior court
jurisdiction in all cases affecting public ambassadors. The original jurisdiction clause,
however, strongly suggests that such cases may-and perhaps must-be exclusively
88
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of judicial power in Article III parallels the opening passages of Articles I
and II, which mandate the vesting of legislative and executive power in
Congress and the President, respectively:
"All legislative powers herein granted shall be vested in a Congress of the
United States .... .89
"The executive Power shall be vested in a President of the United States
of America." 90
This parallelism is striking. Read together, the first three Articles of the
Constitution establish three equal and co-ordinate branches of federal government, each of which derives its power not from the other branches, but
from the Constitution itself. 91 This tri-partite, equilateral architecture represented a sharp-and intentional-break with the earlier Articles of Confederation, which in effect had established a one-branch federal government
with virtually all delegated power conferred upon a legislative Congress
empowered-but not obliged-to create a dependent federal executive and
judiciary .92
vested in the Supreme Court. See infra note 183 and accompanying text. Moreover,
the history of Article III suggests little interest in the jurisdiction of inferior courts
considered alone. Rather, the Framers were concerned with the jurisdiction of the
national judiciary as a whole. The resolution of the Convention, adopted July 18, is
illustrative: "Resolved that the jurisdiction of the national Judiciary shall extend to
cases arising under laws passed by the general Legislature, and to such other
questions as involve the National peace and harmony." 2 M. FARRAND, supra note
50, at 39 (emphasis added).
The better interpretation of the repetition of the word "in" is that the word was
simply reinserted for the sake of grammatical clarity; without it, Article III might
have been read to imply that the permissive "may" language concerning the creation
of inferior courts also applied to the Supreme Court, whose establishment was
intended to be mandatory.
89
U.S. CONST. art. 1, § 1 (emphasis added).
90 Id. art. II, § I (emphasis added).
THE FEDERALIST No. 49, at 339 (J. Madison) (J. Cooke ed. 1961):
"The several departments [are] perfectly co-ordinate by the terms of their common
commission, [i.e., the Constitution]." See also Marshall, A Friendof the Constitution IX, in JOHN MARSHALL'S DEFENSE OF McCulloch v. Maryland 210 (G. Gunther
ed.) (1969) (federal judiciary is not "the deputy of congress" but "a co-ordinate
department, created at the same time, and proceeding from the same source, with the
legislative and executive departments"); see also G. WOOD, supra note 9, at 448,
550-98.
91See, e.g.,
92
Compare U.S. CONST. art. II (direct vesting of executive power in the President
by We the People of the United States); and id. art. III (similarly direct vesting of
judicial power in national judiciary) with Articles of Confederation, art. IX, 5
("Congress shall have authority ...to appoint one of their number to preside ... ")
and id. art. IX 1 ("Congress ... shall have sole and exclusive right and power ...
[of] appointing courts for the trial of piracies and felonies committed on the high seas
and establishing courts for receiving and determining finally appeals in all cases of
1985]
NEO-FEDERALIST VIEW
The independent federal judicial branch established by Article III must
include "one supreme Court." It may also include "such inferior Courts as
the Congress may from time to time ordain and establish." That Congress is
only empowered, but not obliged, to create lower federal courts is further
confirmed by Article I, section 8, which lists among the powers granted to
Congress the seemingly discretionary power "to constitute Tribunals in' 93
ferior to the supreme Court.
1. The Subordinate Role of State Courts
Although Article III speaks in terms of "judicial Power" and not "subject
matter jurisdiction," 94 section 2 of the Article makes it clear that the "judicial Power" subsumes the substantive power to decide cases falling in
certain defined categories. 95 But the "judicial Power of the United States"
goes beyond mere subject matter jurisdiction; it encompasses the power to
speak in the name of the nation, to speak definitively and finally. Within its
sphere, the judicial power of the United States must be supreme-over both
coordinate branches and the states-just as the legislative and executive
powers of the United States must be supreme within their respective
spheres 96
captures .... ") (emphasis added). For an excellent discussion of the Federalists'
desire to strengthen the executive and judicial departments of the national government, see G. WOOD, supra note 9, at 446-63, 547-53. See also THE FEDERALIST Nos.
47-51 (J. Madison); Ackerman, supra note 9, at 1013-31 (expounding the critical
distinction in Federalist political science between the Congress and We the People of
the United States); cj. 3 J. STORY, supra note 19, §§ 1570, 1609-1612 (to similar
effect).
9' U.S. CONST. art. I, § 8, cl. 9. For more history on congressional discretion to
create lower federal courts, see HART & WECHSLER, supra note 2, at 11-13; Clinton,
supra note 16, at 762-69; see also Martin, 14 U.S. (1 Wheat.) at 333 (legislative
powers, by their nature, are discretionary).
94 See Sager, supra note 61, at 22.
91 See infra notes 116-71 and accompanying text.
96 See the first resolution of the Constitutional Convention: "Resolved, That the
government of the United States ought to. consist of a Supreme Legislative,
Judiciary, and Executive." 1 M. FARRAND, supra note 50, at 334; see also Marshall,
supra note 91, at 210:
[No federal branch] can perform the duties or exercise the powers assigned to
another. Each is confined to the sphere of action prescribed to it by the people of
the United States, and within that sphere performs its functions alone ....
On a
judicial question then, the judicial department is the government, and can alone
exercise the judicial power of the United States.
Since Article III speaks of the judicial power, and not of the judicial duty, it is
plausible to believe that this power may be waived, much as Congress may waive its
legislative power by declining to pass laws. But see Cohens v. Virginia, 6 Wheat. 264,
404 (1821) ("We have no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given."). If the judicial power may be waived,
BOSTON UNIVERSITY LAW REVIEW
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State courts may thus exercise concurrent jurisdiction over cases falling
within the national judicial power-indeed, in some cases, they may be
obliged to do so97 -but their decisions cannot be final and unreviewable. The
requirement that "the judicial Power ... shall be vested" in federal courts
mandates that some Article III court be empowered to speak the final word
on all cases within that power. In the words of Hamilton's FederalistNo. 82,
the purport of Article III is that "the state courts will be divested of no part
of their primitive jurisdiction, further than may relate to an appeal." 9 8s If no
inferior federal courts have been created, appeal would lie to the United
States Supreme Court. If inferior Article III courts exist, they may sit in
appellate review over state courts, obviating the need for appellate review
by the Supreme Court. 99
Once again, Hamilton's Federalist No. 82 is instructive. Inferior federal
courts, Hamilton declares, may exercise either original or appellate jurisdiction, or both, at the discretion of Congress:
And this being the case, I perceive at present no impediment to the
establishment of an appeal from the state courts to the subordinate
national tribunals; and many advantages attending the power of doing it
may be imagined. It would diminish the motives to the multiplication of
federal courts, and would admit of arrangements calculated to contract
the appellate jurisdiction of the supreme court. The state tribunals may
then be left with a more entire charge of federal causes; and appeals, in
most cases in which they may be deemed proper instead of being
carried to the supreme court, may be made to lie from the state courts
to district courts of the union. 0 0
however, it can only be waived by Article III judges, as, for example, by a discretionary denial of certiorari. The judicial power may not be waived by Congress because
it was never vested in Congress. Thus, Redish's preemption analogy, see supra notes
64-66 and accompanying text, should be altered as follows: just as the national
legislature may decline to exercise its vested legislative power to displace state law in
a given area encompassed by Article I, so the national judiciary may decline to assert
its vested judicial power to review a state court ruling in a given case comprehended
by Article III.
97 See supra notes 34-37 and accompanying text.
98 THE FEDERALIST No. 82, at 555 (A. Hamilton) (J. Cooke ed. 1961).
99 See infra notes 164-71 and accompanying text.
100 THE FEDERALIST No. 82, at 557 (A. Hamilton) (. Cooke ed. 1961); accord 3 J.
STORY, supra note 19, § 1701. Currently, the regime of federal habeas corpus enables
inferior federal court judges to sit in de facto appellate review over state supreme
courts, although the scope of review is currently considerably narrower in habeas
proceedings than on direct appeal. See, e.g., Stone v. Powell, 428 U.S. 465 (1976)
(violation of exclusionary rule may be presented on appeal, but not in habeas). The
clear constitutional permissibility of de jure direct appellate review renders Justice
Powell's criticisms of the current habeas corpus regime curious at best. See Rose v.
Mitchell, 443 U.S. 545, 579 (1979) (Powell, J., concurring) ("[C]ontrary to principles
1985]
NEO-FEDERALIST VIEW
2.
The Structural Superiority of Federal Judges
The reasons for vesting the last word in certain enumerated categories of
cases with federal, and not state, judges are readily apparent from the next
sentence of Article III: "The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behavior, and shall, at stated
Times, receive for their Services a Compensation which shall not be
10 1
By virtue of their tenure
diminished during their Continuance in Office."
and salary guarantees, Article III judges are constitutionally assured the
structural independence to interpret and pronounce the law impartially. No
10 2
such constitutional guarantee applies for state judges.
Other sections of the Constitution illuminate other important differences
between state and national judges. Pursuant to Article II, section 2, federal
03
judges are appointed by the President; state judges are not., National
of federalism, a lower federal court is asked to review not only a state trial court's
judgment, but almost invariably the judgment of the highest court of the State as
well."). Justice Powell may well misunderstand the "principles of federalism" because he views state and federal judges as fungible, see Stone, 428 U.S. at 493 n.35,
or because post-constitutional history-in which Congress has never exercised its
power to provide for de jure appellate review of state courts by lower federal
courts-has obscured the architecture of Article III itself. Cf. infra notes 110, 115,
146 (discussing ways in which post-constitutional history has shaped constitutional
scholarship).
'o'
U.S. CoNsT. art. III, §
1.
See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 386-87 (1821):
It would be hazarding too much, to assert, that the judicatures of the states will
be exempt from the prejudices by which the legislatures and people are
influenced, and will constitute perfectly impartial tribunals. In many States, the
judges are dependent for office and for salary on the will of the legislature. The
constitution of the United States furnishes no security against the universal
adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose
that it can have intended to leave these constitutional questions to tribunals
where this independence may not exist ....
"[Article III's] provision for the support of the judges bears every mark of prudence
and efficacy; and it may be safely affirmed that, together with the permanent tenure
of their offices, it affords a better prospect of their independence than is discoverable
in the constitutions of any of the states, in regard to their own judges." THE
FEDERALIST No. 79, at 532 (A. Hamilton) (J. Cooke ed. 1961); see also Martin, 14
U.S. (1 Wheat.) at 347: "The constitution has presumed ... that state attachments,
state prejudices, state jealousies, and state interests, might sometimes obstruct, or
control, or be supposed to obstruct or control, the regular administration ofjustice."
103 Although the appointments clause specifically requires that Supreme Court
appointments be made by the President, "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the
102
Courts of law, or in the Heads of Departments." U.S. CONST., art. II, § 2, cl. 2. An
argument could be made that lower federal judges might be "inferior Officers" whose
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
judges must be confirmed by the Senate; not so with state judges. Such a
rarefied appointment and confirmation procedure was designed to promote a
high level of prestige and competence in the federal judiciary that could not
04
A further clear message of Article II,
be guaranteed at the state level.'
section 2 is that federal judges are officers of the nation-they hold national
commissions and speak in the name of the nation. Unlike state judges,
national judges are paid out of the national treasury. The issue of the source
of payment-distinct from the question of salary guarantee-was vital to the
Framers. 10 5 Whereas the Articles of Confederation had provided for the
06
the Constitustate legislatures to pay state representatives to Congress,
tion rejected this practice for all three branches of the new national governConvention, "those
ment. 10 7 In the words of Hamilton at the Philadelphia
10 8
paid."'
are
who
those
of
masters
the
who pay are
appointment could be vested by Congress in other Article III judges. See 3 J.
supra note 19, § 1593 n.1; 4
AMERICAN JURIST,
STORY,
art. v, 298 (October 1830); Shartel,
Federal Judges-Appointment, Supervising and Removal-Some Possibilities
Under the Constitution, 28 MICH. L. REV. 485 (1930). Congress, however, has never
done this, and even if it could, the basic point about rarefied federal appointment
procedures would remain. Indeed appointment by other Article III judges would, if
anything, seem to ensure an even greater degree of professional competence and
independence from the political branches. It also bears notice that by allowing the
vesting of appointments in the courts of law, and not solely in the Supreme Court, the
Constitution once again attests to the structural parity of all Article III judges.
104For a more complete discussion of the issue of competence, see THE
FEDERALIST No. 76 (A. Hamilton); THE FEDERALIST No. 78, at 529-30 (A. Hamilton)
(J. Cooke ed. 1961); see also 3 J. STORY, supra note 19, §§ 1523-27, 1593.
105 Perhaps the clearest statement came from Archibald Maclaine at the North
Carolina ratifying convention:
But if they be the judges of local or state laws, and receive emoluments for acting
in that capacity, they will be improper persons to judge the laws of the Union. A
federal judge ought to be solely governed by the laws of the United States, and
receive his salary from the treasury of the United States. It is impossible for any
judges, receiving pay from a single state, to be impartial in cases where the local
laws or interests of that state clash with the laws of the Union, or the general
interests of America.
4 J.
ELLIOT,
supra note 80, at 172.
Articles of Confederation, art V, 3.
107 See U.S. CONST. art. 1,§ 6, cl. 1 (legislature); id. art'. 11, § 1,cl. 7 (executive);
id. art. Ii, § 1, 1(judiciary). See generally 1 M. FARRAND, supra note 50, at 215-16
(remarks of James Madison) ("it would be improper to leave the members of the NatI
legislature to be provided for by the state Legisls; because it would create an improper
dependence"); 2 id. at 292 (remarks of John Dickensen regarding payment of Congressmen from national, not state, treasury: "Mr. Dickensen took it for granted that
all were convinced of the necessity of making the Geni. Govt. independent of the
prejudices, passions, and improper views of the State Legislatures."). See also M.
FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 138 (1913).
"'4 1 M. FARRAND, supra note 50, at 373.
106
1985]
NEO-FEDERALIST VIEW
Finally, national judges, as national officers, are accountable to the nation
for the discharge of their office in ways that state judges are not. The
corollary of the Article III judge's tenure during good behavior is that he
may be impeached by the national legislature upon conviction of "Treason,
Bribery, or other high Crimes and Misdemeanors."' 10 9 The possibility of
impeachment for corruption or gross misbehavior is an important mechanism to ensure probity and integrity on the federal bench: national judges
can be trusted to be judicious in part because they are impeachable. 1 0 The
Constitution provides no similar guarantee against misconduct by state
judges."' The limitations on federal impeachment are equally important:
unlike state judges, Article III judges may be removed from office only for
misbehavior, and not merely because legislators dislike them for partisan
and political reasons-or for no reason.
By prescribing the structure of appointment, the characteristics of tenure,
and the mechanisms for removal, the Constitution assures the competence,
impartiality, and probity of federal judges. It was in these structural and
institutional guarantees that the Framers ultimately placed their trust, and
not in a naively blind belief in the automatic integrity or virtue of those who
would wield public power." 2 Thus, much of the Constitution was devoted to
109 U.S. CONST. art.
1I, § 4.
No. 81, at 545-46 (A. Hamilton) (J. Cooke ed. 1961):
[An] important constitutional check [is] the power of instituting impeachments
.... This is alone a complete security. There never can be danger that the
judges, by a series of deliberate usurpations on the authority of the legislature,
would hazard the united resentment of the body intrusted with it, while this body
was possessed of the means of punishing their presumption by degrading them
from their stations.
Although there was much debate at the Philadelphia Convention over which organ of
the national government should be empowered to impeach national offices, almost no
one questioned the need for this important check. Thus, for the Federalists, the
central constitutional check given to Congress against the national judiciary was
impeachment, not the power to strip jurisdiction. Modern scholars have largely
ignored the Federalist remedy of impeachment in discussing checks and balances in
Article III. Perhaps this lapse is attributable in part to a post-constitutional development, namely the general desuetude of the impeachment device after the Republicans' unsuccessful attempts to oust Associate Justice Samual Chase in 1804.
' ' See 3 J. STORY, supra note 19, § 1583 (Framers knew that "the judges of the
state courts would be wholly irresponsible to the national government for their
conduct in the administration of national justice").
112 Thus, James
Madison's political model-like Adam Smith's economic
model-rested in large measure on structural mechanisms to harness the interplay of
competing self-interest, in sharp contrast to the classical political scientists' nearexclusive reliance on the republican virtue of all citizens. See, e.g., THE FEDERALIST
No. 51, at 349 (J. Madison) (J. Cooke ed. 1961) ("Ambition must be made to
counteract ambition"). See generally B. ACKERMAN, supra note 9, at 1031 ("The
Economy of Virtue"); G. WILLS, supra note 9, at 259 (discussing Madison's struc-
1to See
THE FEDERALIST
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[Vol. 65: 205
defining the institutional mechanisms by which various officers would be
chosen. The Framers' constitutional focus was to constitute various offices
of government in such a way as would promote desirable traits of
officeholdingI 1 3-for the judiciary, competence, impartiality, honesty, and a
commitment to the nation. It would have been grossly out of character forthe Framers to have committed "ultimate" 1 4 trusteeship of the Constitution
to state judges, whose appointment, tenure and removal were nowhere even
mentioned in, much less prescribed by, the document: it would have been
anomalous-indeed, unthinkable-to place ultimate trust in a group of undefined state officers who might turn out to be (and who in 1787 often were)
1 5
"judges" in name only.'
B.
Defining the Contours of FederalJurisdiction
The next section of Article III takes us to the heart of the national judicial
power, and outlines which categories of cases are to be finally decided by
Article III judges. It begins:
ture for "distilling" limited virtue); G. WOOD, supra note 9, 428-29, 475; id. at 610-12
("The End of Classical Politics").
113 See Carter, supra note 7, at 853-55 (Constitution "constitutes" government by
structuring governmental offices); J. ELY, supra note 52, at 90 (to similar effect); B.
BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION
175-98 (1967)
(discussing traditional understanding of a Constitution as the form in which the
government's offices and institutions are constituted).
114 Hart, supra note 42, at 1401.
115 See supra note 81 and accompanying text; infra notes 141-42 and accompanying text. It is the aim of this essay to establish as a matter of constitutional law what
Burt Neuborne has already argued persuasively as a matter of sociology: state judges
do not enjoy parity with Article III judges. See Neuborne, The Myth of Parity, 90
HARV. L. REV. 1105 (1977). Thus, the states' rights disciples of Hart commit a
category mistake in treating state and federal judicial offices as fungible simply
because both are labeled "judges." The power of such ordinary language both to
reify and obscure has long been recognized. See generally B. ACKERMAN, PRIVATE
PROPERTY AND THE CONSTITUTION (1977). By contrast, the reification of the neoFederalist interpretation-that all Article III judges are created equal-is one rooted
in the structure of the Constitution itself and in Federalist political science. Cf.
Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L.
REV. 591, 657 n. 187 (1981) (discussing legal reifications).
Interestingly, the nationalist disciples of Hart often commit a symmetrical category
mistake in viewing the Supreme Court alone as the third branch of government. See
Ratner, supra note 58, at 162 n.23 (interpreting Framers' references to the "judiciary"
or to "judges" as referring to Supreme Court); R. BERGER, supra note 50 (entitled
CONGRESS V. THE SUPREME COURT); 128 CONG. REC. S4727-30 (daily ed. May 6,
1982) (Letter from Attorney General William French Smith to Senator Strom Thurmond) (Congress may not constitutionally make exceptions to Supreme Court jurisdiction "which would intrude upon the core functions of the Supreme Court as an
1985]
NEO-FEDERALIST VIEW
SECTION 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;-to
all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of
another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citi6
zens or Subjects."
The opening sentence of section 2 snugly complements the opening sentence
of section 1.117 Section 1 ordains that the "judicial Power of the United
States shall be vested" in federal courts; section 2 elaborates on that "judicial Power" by defining the cases to which it "shall extend." Once again,
"shall" is used as a word of obligation. 1 8
independent and equal branch in our system of separation of powers"); see also A.
BICKEL, THE LEAST DANGEROUS BRANCH 1 (1962) ("The least dangerous branch of
the American government is the most extraordinarily powerful court of law the world
has ever known[:] the Supreme Court .... ). These false equations of the Supreme
Court and the third branch are attributable not so much to ordinary language as to
post-constitutional history and the unique historical role that the Supreme Court has
come to play, in contradistinction to all other courts. Cf. supra notes 100, 110; infra
note 146 (discussing other effects of post-constitutional history). We should not,
however, confuse the historically familiar with the constitutionally necessary. When
one looks to the Constitution itself, it is clear that the co-equal, independent, and
"least dangerous" branch that it establishes is neither the Supreme Court alone, nor
all judges (state and federal), but instead the national judiciary, composed of all
Article III judges. See supra notes 60-62 and accompanying text; cf. Redish, supra
note 64, at 909 (noting that Ratner's constitutional "legislative history" argues not
for Supreme Court jurisdiction, but Article III jurisdiction).
116 U.S. CONST. art. III, § 2.
i17See supra text accompanying note 87 (opening sentence of § 1).
118
See generally Clinton, supra note 16 (offering historical evidence to establish
that "shall" generally means "must" in Article III).
It is somewhat curious that most commentators have never questioned the mandatory nature of Article III's language that the Supreme Court "'shall have original
jurisdiction" in all cases affecting public ambassadors, etc., see, e.g., Hart, supra
note 42, at 1372-73 (quoted supra note 47), but seem to ignore the similarly mandatory nature of the seemingly parallel command that the "judicial power shall extend"
to certain enumerated cases. The usage of the word "shall" in the sentence elaborating the Supreme Court's appellate Jurisdiction-- In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction ....-- also cuts
against any view that the word "shall" is not mandatory upon Congress. If the
phrase, "the supreme Court shall have appellate Jurisdiction" simply empowered,
but did not oblige, Congress, then the exceptions clause would have been redundant.
BOSTON UNIVERSITY LAW REVIEW
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1. The Two Tiers of Article 1II Jurisdiction
Nine specific-and overlapping-categories of cases are spelled out in the
section 2 menu, but these categories are not all of equal importance. The
judicial power must extend to "all" cases in the first three categories; not so
with the final six enumerated categories, where the word "all" is nowhere to
be found. The implication of the text, while perhaps not unambiguous, is
strong: although the judicial power must extend to all cases in the first three
categories, it may, but need not, extend to all cases in the last six. The
choice concerning the precise scope of federal jurisdiction in the latter set of
cases seems to be given to Congress' 1 9-an implication confirmed by the
Martin, 14 U.S. (I Wheat.) at 332-33; cf. infra text accompanying note 125 (discussing usage of "all" in appellate jurisdiction clause).
In two instances, however, Article Ill does seem to use the word "shall" to
empower, but not oblige, the other branches to act: (1) "and Treaties made, or which
shall be made" and (2) "with such Exceptions, and under such Regulations as the
Congress shall make." In both instances, however, the text of Article 111 makes
specific, unambiguous reference to distinct powers of nonjudicial branches, and the
nonobligatory nature of these empowerments seems to be suggested by context. See
Martin, 14 U.S. (I Wheat.) at 333: "the legislative powers are given in language
which implies discretion, as Jorn the nature of legislative power such a discretion
must be exercised" (emphasis added).
All other uses of "shall" in Article 111, however, reflect a different convention. In
this, the Judiciary Article, the constitutional text generally directly empowers and/or
obliges the judicial branch of government, and not the Congress. It is the judiciary
that shall be vested with the judicial power that shall extend; it is the judges that shall
enjoy life tenure and salary protections; it is the Supreme Court that shall have
original jurisdiction in some cases and a defeasible appellate jurisdiction in others.
Thus, even if the verb "shall" is here, too, seen as simply empowering but not
obliging, but see Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (quoted supra
note 96); 3 J. STORY, supra note 19, § 1570 (citing Cohens), it is the judiciary that is
being empowered, and thus only the judiciary-and not Congress-may waive the
power. See supra notes 41, 96; injra note 205 and accompanying text.
Hence, to view the federal judiciary as a mere creature of Congress that may be
abolished by Congress for all practical purposes, cf. Redish, supra note 60; Redish,
supra note 64; supra notes 64-70 and accompanying text, is to misunderstand the
structure of Article 1II and of the Constitution. Instead of merely allowing Congress
to create a federal judiciary as did the Articles of Confederation, see supra notes
91-92 and accompanying text, the Constitution created a co-equal branch of government with self-executing jurisdiction, see infra note 168.
''9 Arguably, federal courts must have the power to hear at least some miniscule
subset of cases in each of the last six categories; the use of the plural, "Controversies," suggests that "the judicial Power shall extend to [at least two] Controversies"
in each category. As any such restriction on congressional power would be both
trivial and practically unenforceable, I shall for expository ease follow the principle
de minimis non curat lex, and speak as if Congress could abolish all jurisdiction in
these categories.
1985]
NEO-FEDERALIST VIEW
"exceptions and regulations" and the "necessary and proper" clauses.
120
20
See infra note 160 and accompanying text. Interestingly, the two-tiered juris-
dictional catalogue comprehending "all Cases" in certain categories and "Controversies" (but not necessarily all controversies) in other categories made its first
appearance in the same draft where the exceptions clause also first appeared. 2 M.
FARRAND, supra note 50, at 172-73. In this draft, however, the predicate of the
command "shall extend to all cases" was not (as in the final version of Article Ill)
"the judicial Power," but rather "The Jurisdiction of the Supreme (National)
Court." Thus, the draft provided that:
(1) Supreme Court jurisdiction shall extend to all cases in certain categories;
(2) Supreme Court jurisdiction shall extend to (not necessarily all) controversies in
other categories;
(3) In certain categories, the Court's "Jurisdiction shall be original;" and,
(4) In "all the other Cases before mentioned, it shall be appellate, with such
Exceptions and under such Regulations as the Legislature shall make." Id.
Only one interpretation of this draft can logically reconcile the congressional
power to make exceptions granted in paragraph (4) with the language of paragraphs
(1) and (2), and the apparent impermissibility of adding to the Supreme Court's
original jurisdiction in paragraph (3): although exceptions may be made regarding the
controversies in paragraph (2), they may not be made regarding the mandatory cases
in paragraph (1). Any other reading would mean that paragraph (4) constituted an
implicit repeal of paragraph (1). This is an inference that should not be lightly
indulged if an alternative reading is possible that would harmonize all the words of
this draft. Thus, under the interpretation offered here, the congressional exceptions
power was always closely connected to the distinction between the mandatory and
permissive categories of cases. For further discussion of this draft, see infra note 128
and accompanying text.
Robert Clinton offers an interesting but odd interpretation of this draft. He argues
that the exceptions clause in this draft permitted deletions from the Supreme Court's
appellate jurisdiction in all categories, but only in favor of lower federal court
jurisdiction. Clinton, supra note 16, at 775-86. Yet Clinton fails to show how such a
broad exceptions power may be squared with paragraph (1), which commands that
the Supreme Court's jurisdiction shall extend to all cases in certain categories.
Moreover, if such exceptions can be made, it is somewhat unclear why they may be
made only in favor of lower federal courts. Clinton's interpretation hinges on a
textual linchpin that simply does not exist. He claims that this draft "required that
the judicial power of the United States 'shall extend' to the Supreme Court, and
whatever federal courts, if any, Congress chose to create." Id. at 792 n. 167. Yet this
draft does not provide that "the judicial power of the United States shall extend," as
Clinton implies, but rather that "the jurisdiction of the Supreme Court shall extend."
Moreover, contrary to Clinton's muddy suggestion that the judicial power "shall
extend" to all federal courts, the Framers provided that the judicial power "shall be
vested" in federal courts, and "shall extend" to cases, not courts.
Although the language of this early draft thus does not appear to empower Congress to transfer final resolution of the cases in paragraph (1)to lower federal courts,
subsequent amendments to the draft's language did result in the conferring of such
congressional power. See infra notes 163-71 and accompanying text. The key textual
change came when the Convention replaced the words "the jurisdiction of the
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
(a) Text. The selective use by the Framers of the word "all" may not be
lightly presumed to be unintentional. Where possible, each word of the
Constitution is to be given meaning; no words are to be ignored as mere
surplusage.'21 "All" is used not once, not twice, but three separate times in
the opening sentence of section 2. The word is then omitted six times. This
selective repetition and omission tends to confirm the presumption of intentional insertion. 1 22 This presumption is further strengthened by the next
sentence of Article III, which carefully modifies the cases affecting public
ambassadors falling within the Supreme Court's original jurisdiction with
the qualifier "all," thus harmonizing with the language of the jurisdictional
menu: "In all Cases affecting Ambassadors, other public Ministers and
123
Consuls, . . .the supreme Court shall have original Jurisdiction."'
The clause governing the Supreme Court's appellate jurisdiction also
suggests that the word "all" is used in an emphatic sense. 124 If extending the
Supreme Court's appellate jurisdiction to "all the other Cases before mentioned" meant simply that Congress could contract that jurisdiction at will,
there would have been no need for an explicit exceptions and regulations
clause. Unless the exceptions clause is to be dismissed as redundant verbiage, its inclusion strongly supports the inference that "all" means just
25
that. 1
(b) History. The records of the Constitutional Convention also strongly
corroborate the notion that the Framers used the word "all" intentionally
and with care, purposefully establishing a two-tiered jurisdictional structure.
The draft constitution produced by the Committee of Style omitted the word
"all" in the clause setting out the Supreme Court's original jurisdiction. That
Supreme Court" in paragraph (1) with the phrase, "the judicial Power of the United
States." 2 M. FARRAND, supra note 50, at 430-32. Such a change was in keeping with
the Framers' recognition of the structural parity of all Article III judges.
121 Martin, 14 U.S. (1 Wheat.) at 334 ("It is hardly to be presumed that the
variation in the language could have been accidental."); cf: Marbury v. Madison, 5
U.S. (1 Cranch) 137, 174 (1803) ("It cannot be presumed that any clause in the
constitution is intended to be without effect; and therefore such a construction is
inadmissible, unless the words require it.").
122 Because he views virtually all federal jurisdiction as merely permissive, at
Congress's discretion, Redish cannot offer any good explanation for the inclusion of
the word "all" in the first three jurisdictional categories. Conversely, because he
views virtually all federal jurisdiction as mandatory, Crosskey cannot offer any good
explanation for the omission of the word "all" in the last six jurisdictional categories.
Only a two-tiered model of jurisdiction, recognizing both a mandatory core and a
permissive penumbra of federal jurisdiction, can make sense of all the words included
in and omitted from Article II1.
123 U.S. CONST. art. III, § 2; see infra note 160.
124 U.S. CONST. art. III, § 2: "In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction ... with such Exceptions ... as the
Congress shall make." (Emphasis added).
125 Cf. supra note 118.
NEO-FEDERALIST VIEW
19851
inserted by the Convention during the
one word was thereafter specifically
26
last days at Philadelphia.
Earlier versions of the judicial article in the Committee of Detail, which
was charged with the task of translating the Convention's initial resolutions
into the first complete draft constitution, offer further valuable and powerful
evidence. The first major Committee draft, composed by Edmund Randolph
with emendations by John Rutledge, provided that:
7. The jurisdiction of the supreme tribunal shall extend
1. to all cases, arising under laws passed by the general [Legislature]
2. to impeachments of officers, and
3. to such other cases, as the national legislature may assign, as
involving the national peace and harmony,
in the collection of the revenue
in disputes between the citizens of different states
[in disputes between a State & a Citizen or Citizens of another
State]
in disputes between different states; and
in disputes, in which subjects or citizens of other countries are
concerned
1 27
[& in Cases of Admiralty Jurisdn].
The structure of federal jurisdiction in this early version is apparent. In one
class, of cases-containing the prototype of the eventual "arising under"
category-jurisdiction would be plenary and mandatory. In the second class
of cases-containing prototypes of what eventually became the partydefined categories-national jurisdiction was not mandatory but permissive,
at the discretion of "the general [Legislature]."
Compare 2 M. FARRAND, supra note 50, at 576 (Committee on Style draft) with
id. at 661 (Final Draft of Constitution). Unfortunately, the decisions to make this and
several other stylistic changes are nowhere recorded in the Convention Journal or
Madison's notes. There is thus no surviving evidence concerning the date of the
change, or the discussion and votes surrounding it. Presumably, however, the oneword change was made deliberately and self-consciously; to presume otherwise is to
impute capriciousness to the Convention.
127 2 M. FARRAND, supra note 50, at 146-47 (as in original). The bracketed material
indicates emendations in Rutledge's handwriting. The language and structure of this
early committee draft closely follow the final wording of the Convention's resolution
on federal jurisdiction, as recorded by Madison, the resolution's author: "the jurisdiction shall extend to all cases arising under the Natl. laws: And to such other
questions as may involve the Natl. peace & harmony." Id. at 46.
This resolution is noteworthy in two respects. First, it highlights the special
significance to the Framers of federal question jurisdiction, which is separated from
all other possible jurisdictional categories. Second, it strongly hints at a two-tier
jurisdictional scheme, with a mandatory tier in which federal jurisdiction "shall
extend to all cases," and a permissive second tier, where the discretionary verb
"may" replaces the obligatory "shall," and the indeterminate adjective "such"
replaces the unambiguous "all."
126
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This general two-tiered jurisdictional structure was preserved in what
appears to be the next major draft of the Committee, prepared by James
Wilson with notations from John Rutledge:
The Jurisdiction of the Supreme (National) Court shall extend to all
Cases arising under Laws passed by the Legislature of the United
States; to all Cases affecting Ambassadors (and other) [other] public
Ministers [& Consuls], to the Trial of Impeachments of Officers of the
United States; to all Cases of Admiralty and Maritime Jurisdiction- to
Controversies between [States-except those wh. regard Jurisd or
Territory,-betwn] a State and a Citizen or Citizens of another State,
between Citizens of different States and between [a State or the] Citizens (of any of the States) [thereof] and foreign States, Citizens or
Subjects. 12
Jurisdiction in the first tier would mandatorily extend to "all" cases in
certain categories, but would not necessarily extend to all cases in the
second tier. While retaining the structure of the Randolph draft, however,
the Wilson draft did reshuffle the placement of some categories: admiralty
jurisdiction, for example, was inserted in the first tier.'29 The language of the
128
Id. at 172-73 (as in original). The bracketed material indicates emendations in
Rutledge's handwiting.
Although the word "all" does not appear in the impeachment clauses of the
Randolph and Wilson drafts, it seems probable that this category fell in the mandatory, rather than the permissive, class of cases. The omission of the word "all" was
probably of little significance to the Committee, however, since impeachments were
dealt with at length in other sections of these drafts.
A further point of interest in the Wilson draft is its reference to disputes in the
mandatory tier as "Cases" and disputes in the permissive tier as "Controversies."
All subsequent drafts preserved this distinction, and it survives in the final text of
Article Il. Some have suggested that the technical legal meaning of the words
"Cases" and "Controversies" diverge, and that while the former comprehends both
civil and criminal disputes, the latter is limited to the civil sphere. See 3 J. STORY,
supra note 19, § 1668 n.2 (citing Chisolm v. Georgia, 2 U.S. (2 DalI.) 419, 431-32
(1793) (separate opinion of Iredell, J.)). This argument, however, is belied by the
sentence setting out the original jurisdiction of the Supreme Court. In this sentence,
the several categories of "Controversies" to which a state is party in the jurisdictional menu are referred to as "Cases," thus suggesting that the two words are legally
synonymous. Similarly, the reference in the appellate jurisdiction clause to "all the
other Cases before mentioned" seems to comprehend categories of disputes earlier
labeled "Controversies." Thus, the better interpretation of the usage of two different
words to define the legal disputes comprehended by Article IIl is that the different
wording simply represents yet another way-in addition to the selective usage of
"all" and the distinction between party-defined and subject matter-defined
jurisdiction-in which the first three jurisdictional categories were set off as structurally different from the last six.
'129The language and categorization within this two-tiered structure may also have
been influenced by a Resolution that had been introduced earlier by William Paterson
1985]
NEO-FEDERALIST VIEW
Wilson draft seems to reflect the ultimate consensus of the Committee, as its
language closely tracks the phrasing of the ultimate Committee Report,
which in turn closely resembles the eventual text of the Article III jurisdictional menu.
(c) Structure. Constitutional structure and policy provide further support
for the distinction between the three mandatory categories and the six
permissive ones. The permissive categories were listed last precisely because they were deemed less important. Defined solely by the status of the
parties to them, cases in these categories might concern only trivial subjects.13 0 To guard against particular-and foreseeable-instances of special
bias in state tribunals, the Framers wanted to allow impartial national courts
to hear such cases, if necessary. But the necessity would not be uniform and
as part of the celebrated New Jersey Plan offered as a states' rights alternative to
Madison's and Randolph's Virginia Plan. The Paterson plan provided that the federal
judiciary
shall have authority to hear & determine in the first instance on all impeachments
of federal officers, & by way of appeal in the dernier resort in all cases touching
the rights of Ambassadors, in all cases of captures from an enemy, in all cases of
piracies & felonies on the high seas, in all cases in which foreigners may be
interested, in the construction of any treaty or treaties, or which may arise on
any of the Acts for regulation of trade, or the collection of the federal Revenue.
I M. FARRAND, supra note 50, at 244. This resolution strongly suggests that even
states' rights advocates at the Convention recognized a need for a mandatory core of
jurisdiction in which the federal judiciary would have the last word. The apparent
influence of this resolution on Wilson's Committee draft is confirmed by an earlier,
private version of Wilson's draft which borrows verbatim from the Paterson resolution on the judiciary. See 2 M. FARRAND, supra note 50, at 157. Wilson's Committee
draft is thus best seen as blending the mandatory subject matter-defined jurisdictional
cores of Randolph and Paterson, and following the Randolph approach by creating a
penumbral class of permissive party-defined jurisdictional categories.
130 In marked contrast to his ringing defense of federal question jurisdiction, see
ifra text accompanying notes 141, 145, Madison offered only a tepid and halfhearted defense of diversity jurisdiction, which he believed could have been omitted
by the Convention without much harm: "I will not say it is a matter of much
importance. Perhaps it might be left to the state courts." J. ELLIOT, supra note 80,
at 433; see also id. at 570 (remarks of Edmund Randolph at Virginia ratification
convention) ("[I do] not see any absolute necessity for vesting [the federal judiciary]
with jurisdiction in these cases"); id. at 549 (remarks of Edmund Pendleton) ("I
think, in general, these decisions might be left to the State tribunals . . . .I think it
will, in general, be so left by the regulations of Congress"); id. at 556 (remarks of
John Marshall) ("Were I to contend that this was necessary in all cases and that the
government without it would be defective, I should not use my own judgment."); 2
id. at 491 (remarks of James Wilson at Pennsylvania convention) ("This part of the
jurisdiction, I presume will occasion more doubt than any other part."); Hepburn v.
Ellzey, 6 U.S. (2 Cranch) 445, 450 (1805) (oral argument of former Attorney General
Charles Lee) ("The jurisdiction given to the federal courts in cases between citizens
of different states, was, at the time of the adoption of the constitution, supposed to be
of very little importance to the people."). See generally Friendly, supra note 81.
BOSTON UNIVERSITY LAW REVIEW
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unwavering-it would vary from state to state and from year to year. Instead
of laying down an absolute rule of mandatory national jurisdiction in all such
cases, the Framers were content to commit the issue to a congressional
discretion that could accommodate fluctuating circumstances-much as they
had earlier agreed to commit the creation of inferior federal courts vel non to
congressional discretion. The wisdom of the Convention's decision has been
confirmed by the history of the nation since 1789. Today, for example,
131
plenary diversity jurisdiction seems undesirable as a policy matter.
Foreseeing such contingencies, the Framers presciently declined to require
full diversity jurisdiction. The first three categories, however, present a very
different picture. Defined by subject matter and not party identity,1 3 2 these
33
cases were vitally important per se to the Framers.
2.
The Critical Importance of Mandatory Cases
(a) "Arising Under" Cases. The first category comprehends all cases
arising under the Constitution, laws, and treaties of the United States. With
respect to cases arising under the Constitution, the need for mandatory
For a recent thoughtful and influential proposal to eliminate most diversity
jurisdiction, see H. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 139-52
(1973); cf. Redish, supra note 60, at 152 (noting that plenary diversity jurisdiction
would be overbroad).
132 Cases "affecting" public ambassadors were defined by subject matter, not
party identity. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 855
(1824) ("This court can take cognizance of all cases 'affecting' foreign ministers; and
therefore, jurisdiction does not depend on the party named in the record."); Marshall, supra note 91, at 213-14 (first three jurisdictional categories defined by "the
character of the cause;" last six by "the character of the parties").
133 See Martin, 14 U.S. (1 Wheat.) at 347 (national jurisdiction in first tier supported by "reasons of a higher and more extensive nature" than for second tier).
Unsurprisingly, the distinction between the mandatory and permissive categories
in Article III closely parallels the distinction between those types of otherwiseunconstitutional conduct that Congress may cure and those areas where Congress is
not given the last word by the Constitution. Mandatory "arising under" jurisdiction
is closely connected to individual constitutional rights against temporary majorities,
where Congress would be an untrustworthy guardian, and to separation-of-powers
restrictions against retroactive legislation, which restrictions are directly binding on
Congress. See supra notes 71-83 and accompanying text; infra notes 146-51 and
accompanying text. In these areas of individual rights and legal entitlements, the
Framers committed the last word to an apolitical federal judiciary, not Congress.
The permissive categories of jurisdiction, on the other hand, deal with the status of
the United States as a party to lawsuit, interstate disputes, and economic discrimination by states against out-of-staters. These categories are closely connected to the
areas of intergovernmental immunity, interstate compacts, and the dormant commerce clause-areas where the Constitution does recognize Congress as a sufficient
policeman over states, and where Congress can "cure" (prospectively, at least)
otherwise-unconstitutional state conduct. See supra note 83 and accompanying text.
131
19851
NEO-FEDERALIST VIEW
jurisdiction of the national judiciary was manifest.
134
The Framers expected
134 It is especially hard to square the Hart school's "primary"
and "ultimate"
reliance on state judges in constitutional cases with the fact that many of our most
precious constitutional rights are rights against the states themselves. Indeed it is
noteworthy that Hart's famous Dialogue was published in 1953-before Brown v.
Bd. of Educ., 347 U.S. 483 (1954), and its progeny dramatized the special role of
federal courts in protecting individual constitutional rights against states by breathing
new life into fourteenth amendment promises that had long lain dormant.
Martin Redish has tried to blunt the effect of modern fourteenth amendment case
law by suggesting that the original Constitution did not contain many important
limitations on state power; therefore, the Framers would not have found it anomalous
to place ultimate reliance on state courts. Redish, supra note 60 at 152-53. Yet Redish
is flatly wrong here: the Civil War amendments represent a continuation of-and not
a break with-the animating spirit of the original Constitution. The self-executing
restrictions on states imposed by Article I, section 10 were considered among the
most important provisions of the entire Constitution, and federal courts were to have
a special role in policing these restrictions. Thus, in defending the jurisdiction of the
federal courts, Hamilton wrote:
What for instance would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them?
The states, by the plan of the convention are prohibited from doing a variety of
things; some of which are incompatible with the interests of the union and others
with the principles of good government. [Federal] power must either be a direct
negative on the state laws, or an authority in the federal courts to over-rule such
as might be in manifest contravention of the articles of union. .
.
. The latter
appears to have been thought by the convention preferable to the former ....
THE FEDERALIST No. 80, at 535 (A. Hamilton) (J. Cooke ed. 1961); see also supra
notes 67-83 and accompanying text. Indeed, the entire Federalist enterprise of
establishing a new and stronger federal government was largely conceived of as a
way to erect a strong bulwark of individual rights against overweening state governments. See 5 WRITINGS OF JAMES MADISON 27 (Hunt ed. 1904) (Letter from James
Madison to Thomas Jefferson):
The mutability of the laws of the States is found to be a serious evil. The injustice
of them has been so frequent and so flagrant as to alarm the most steadfast
friends of Republicanism. I am persuaded I do not err in saying that the evils
issuing from these sources contributed more to that uneasiness which produced
the Convention, and prepared the public mind for a general reform, than those
which accrued to our national character and interest from the inadequacy of the
Confederation to its immediate objects. A reform, therefore, which does not
make some provision for private right must be materially defective.
See also THE FEDERALIST Nos. 10, 43, 44 (J. Madison); 2 M. FARRAND, supra note
50, at 288 (remarks of John Mercer) ("What led to the appointment of this Convention? The corruption and mutability of the Legislative Councils of the States."); R.
BERGER, supra note 50, at 10- 11; G. WOOD, supra note 9, at 463-67 ("The Abandonment of the States"); supra note 69.
Redish's argument that state courts may exercise unreviewable jurisdiction in
cases where individual constitutional rights are at stake is also hard to square with his
view that Article I courts may not exercise such jurisdiction. Some Article I courts
may well enjoy more structural independence from political branches than state
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
that the national judges would uphold the Constitution by denying effect to
any purported law inconsistent with it. 13 - In fact, the words "this Constitution" in the "arising under" category were specifically and self-conciously
136
inserted by the Convention with the power of judicial review in mind.
Only a federal judiciary with tenure and salary guarantees would possess the
requisite competence and independence to discharge this most delicate duty
faithfully. As Oliver Ellsworth explained to the Connecticut ratification
convention:
If the general legislature should at any time overleap their limits, the
judicial department is a constitutional check. If the United States go
beyond their powers, if they make a law which the Constitution does not
authorize, it is void; and the judicial power, the national judges, who to
secure their impartiality, are tok6e made independent, will declare it to
be void. On the other hand, if the states go beyond their limits, if they
make a law which is a usurpation upon the federal government the13 7law is
void; and upright, independent judges will declare it to be So.
The history of the supremacy clause demonstrates the Framers' fear that
unsupervised judicial review by state court judges would be insufficient to
protect constitutional liberty. On July 17, the Convention overruled a prior
decision by the Committee on the Whole to give Congress a "negative" over
unconstitutional state laws. Instead, the Convention adopted an early version of the supremacy clause.' 3 8 As Gouverneur Morris observed, an adequate check on states could be provided by a "negative" in the national
"Judiciary department."' 3 9 Although Roger Sherman suggested in this decourts. Indeed, Redish himself admits that the logic of this prong of his argument is
"at the very least, awkward." M. REDISH, FEDERAL
THE ALLOCATION OF JUDICIAL POWER 46 (1980).
JURISDICTION: TENSIONS IN
135See generally R. BERGER, supra note 50.
136
2 M.
FARRAND,
supra note 50, at 430.
Those historians and legal scholars who have recently reviewed the historical
records of the Federalists are in widespread agreement that judicial review was
clearly intended by the Framers. See, e.g., R. BERGER, supra note 50; C. BLACK,
THE PEOPLE
WILLS,
AND THE COURT:
supra note 9; G.
WOOD,
1456 (1954). But see 2 W.
JUDICIAL
REVIEW IN A
DEMOCRACY
supra note 9; Hart, Book Review, 67
CROSSKEY,
(1960); G.
HARV.
L.
REV.
supra note 53, at 1007 ("judicial review was not
meant to be provided generally in the Constitution, as to acts of Congress, though it
was meant to be provided generally as to the acts of the states").
1373 M. FARRAND, supra note 50, at 240-41 (emphasis added); see also THE
FEDERALIST No. 39, at 256 (J. Madison) (J. Cooke ed. 1961): "[I]n controversies
relating to the boundary between the [state and national power,] the tribunal which is
ultimately to decide, is to be established under the general Government .... The
decision is to be impartially made, according to the rules of the Constitution; and all
the usual and most effectual precautions are taken to secure this impartiality."
138 2 M. FARRAND, supra note 50, at 28.
I3
Id.
NEO-FEDERALIST VIEW
1985]
bate that judicial review by state judges might be sufficient to protect
constitutional rights, the clear understanding of the Convention was that
40
Madistate court decisions must be reviewable by the national judiciary. 1
son's reply to Sherman was typical: "Confidence cannot be put in the State
Tribunals as guardians of the National authority and interests. In all the
States these are more or less dependent on the Legislatures." 14' Edmund
Randolph's comment the next day was in a similar vein: "[T]he Courts of the
42
States can not be trusted with the administration of the National laws."'1
Even those who favored limiting the federal judicary sought state court
jurisdiction only in the first instance, with appellate review by a national
tribunal. John Rutledge, for example, opposed establishing any national
tribunal except a single supreme one. "The state Tribunals [are most proper]
in all cases to decide in the first instance[,] the right to appeal to the supreme
national tribunal being sufficient to secure the national rights & uniformity of
Judgmts." 141
The supremacy clause, as finally worded, addressed only state court
judges, but the mandatory jurisdiction created by Article III assured the
Convention that the final word on constitutional questions would lie in
federal courts. The Framers clearly understood the connection between
Article III and the supremacy clause; indeed, the Convention specifically
modified the "arising under" language of the Article to render it "conformabl[e] to a preceding amendment" changing the language of the supremacy
clause. 14 4 The supremacy clause would oblige state judges to follow the
supreme law of the Constitution at the trial level; appellate review by Article
III judges would assure faithful and accurate discharge of this obligation. As
James Madison later explained to Thomas Jefferson:
the General Convention regarded a provision within the Constitution for
deciding in a peaceable [and] regular mode all cases arising in the course
of its operation, as essential to an adequate System of Gov[ernment]
....
[I]t intended the Authority vested in the Judicial Department as a
final resort in relation to the States, for cases resulting to it in the
140
Id. at 27.
Id. at 27-28; see also 1 id. at 124 (remarks of James Madison) (criticizing
"biassed directions of dependent" state judges).
142 2 id. at 46; cf. 3 id. at 207 (remarks of Luther Martin before Maryland
legislature) (noting Federalists' plain distrust of state courts); supra note 8.
143 1 M. FARRAND, supra note 50, at 124; see also 3 id. at 206 (remarks of
Anti-Federalist Luther Martin before Maryland legislature) (arguing for state court
jurisdiction "in the first instance" only, with review in the Supreme Court); cf. R.
BERGER, supra note 50, at 286 n.6 ("it seems quite clear that it was only 'initial,'
original, not final, jurisdiction that was to be left to the state courts, subject to an
appeal to the Supreme Court") (emphasis in original); infra note 220 (quoting similar
remarks of Professor Bator).
144 2 M. FARRAND, supra note 50, at 431.
14
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
exercise of its functions .... [T]his intention is expressed by the
articles declaring that the federal Constitution and laws shall be the
supreme law of the land, and that the Judicial Power of the [United
States] shall extend to all cases arising under them .... 141
It would have been insufficient simply to empower, but not oblige, Congress
to give federal courts jurisdiction in these cases. Both Congress and state
courts might be heavily dependent on state legislatures and temporary majorities. Thus, Congress might often be disposed to forgive unconstitutional
conduct by state legislatures. Similarly, state courts could not guarantee the
necessary independence or competence to protect individuals from constitutional encroachments by the political branches of federal and state govern46
ment. 1
Similar reasons support mandatory national court jurisdiction in cases
arising under federal laws and treaties. The Article III power to interpret
laws and treaties was necessary to complement the Article I and Article II
145 4id. at 83-84 (Letter from J.Madison to T. Jefferson). Note that by speaking of
the national "Judicial Department," and not merely the Supreme Court, Madison's
letter points us once again to the national judiciary as a whole, thereby reconfirming
the structural parity of all Article III decisionmakers. See supra notes 88-115 and
accompanying text.
146 See supra notes 71-83, 102-15 and accompanying text. For an especially clear
statement of the dominant view at the Convention of the unique role to be played by
the national judiciary in policing the conduct of states, see 3 M. FARRAND, supra note
50, at 56 (Edmund Randolph's suggestion for conciliating the small states):
4. That altho' every [congressional] negative given to the law of a particular
State shall prevent its operation, any State may appeal to the national Judiciary
against a negative; and that such a negative if adjudged to be contrary to the
power granted by the articles of the Union, shall be void.
5. that any individual conceiving himself injured or oppressed by the partiality
or injustice of a law of any particular State may resort to the National Judiciary,
who may adjudge such law to be void, if found contrary to the principles of
equity and justice.
It must be remembered, of course, that under the Constitution as originally
adopted, state legislatures would directly elect the Senate and indirectly elect the
President by choosing electors. The passage of the seventeenth amendment and the
development of national Presidental elections have tended to obscure the obvious
importance of these structural links between the state legislatures and the national
political branches in the original Constitution. Cf.supra notes 100, 110, 115 (discussing other post-constitutional developments). Thus, under the original Constitution,
the national judiciary was designed to be far more insulated from the influence of
state legislatures than were the national legislature and executive. Not only did the
initial mode of judicial selection give states a less direct role, but more important, life
tenure would eliminate any need or temptation to pander to the interests of state
legislatures in order to stay in office. See THE FEDERALIST No. 51, at 348 (J.
Madison) (J. Cooke ed. 1961) ("permanent tenure by which the appointments are
held in [the judicial] department, must soon destroy all sense of dependence on the
authority conferring them").
19851
NEO-FEDERALIST VIEW
powers to make and enforce laws and treaties. In the words of Federalist
No. 80: "If there are such things as political axioms, the propriety of the
judicial power of a government being
co-extensive with its legislative, may
147
be ranked among the number."'
Once again, nonmandatory jurisdiction would have been insufficient.
Congress was vested with only one-third of the power of the national
government, the power to legislate. 148 The President was vested with the
power to execute the national laws, and the national judiciary with the power
to interpret them. This separation of powers was designed to ensure that the
laws passed by the legislature would be prospective and general. Their
interpretation by an impartial and independent judiciary would prevent
retroactive modification and ensure even-handed application, thereby promoting the rule of law. 149 If the Framers had allowed Congress to vest final
interpretive authority in state judges who might lack both competence and
independence, this careful separation of powers might have been easily
circumvented.' 5 0 Such a result was clearly not intended. Congress may no
147 THE FEDERALIST No. 80, at 535 (A. Hamilton) (J. Cooke ed. 1961); see also
Martin, 14 U.S. (I Wheat.) at 329 ("The object of the constitution was to establish
three great departments of government; the legislative, the executive, and the judicial
departments. The first was to pass laws, the second to approve and execute them,
and the third to expound and enforce them."); Cohens v. Virginia, 6 Wheat. 264, 384
(1821) ("[Tlhe judicial power of every well constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question
which grows out of the constitution and laws."); 3 J. STORY, supra note 19, § 1571;
Lee, Letters of a FederalFramer (October 1787), in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 279, 306-07 (P. Ford ed. 1968) ("It is proper that the
federal judiciary should have power co-extensive with the federal legislature-that is
the power of deciding finally on the laws of the union.").
148 It is a category mistake to view Congress as the sole repository of federal
power, and thereby confuse "Congress" with "the federal government' '--justas it is
a category mistake to view Congress as the sole sovereign representative, and
thereby confuse "Congress" with "the People." See supra note 9.
149 See R. BERGER, supra note 50, at 55-56; G. WILLS, supra note 9, at 108-50.
0so
See THE FEDERALIST No. 81, at 547 (A. Hamilton) (J. Cooke ed. 1961): "State
judges, holding their offices during pleasure, or from year to year, will be too little
independent to be relied upon for an inflexible execution of the national laws." Cf.
THE FEDERALIST No. 78, at 522 (A. Hamilton) (J. Cooke ed. 1961):
The standard of good behaviour for continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the
practice of government. .
.
. In a republic it is [an] excellent barrier to the
encroachments and oppressions of the representative body. And it is the best
expedient which can be devised in any government, to secure a steady, upright
and impartial administration of the laws. (Emphasis added).
The suggestions of Martin Redish notwithstanding, the "greater" congressional
power to decline to enact federal laws does not subsume the "lesser" power to pass
laws conditioned on unreviewable state court jurisdiction. Cf. supra note 65 and
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
more waive the judicial power of final interpretation than it may waive the
President's power to execute the laws. 15 1
accompanying text. Such a greater power/lesser power argument proves far too
much, for it would likewise seem to authorize:
(1) a congressional law vesting final fact-finding power in a criminal case in an
agency of congressional creation, but see U.S. CONST. amend. VI (right to trial by
jury); or
(2) a congressional law circumventing presentment to the President, but see INS
v. Chadha, 103 S. Ct. 2764 (1983).
Although Congress need not exercise its Article I power to enact a given law, if it
does pass such a law, it may not condition that law in ways that violate constitutional
restrictions on congressional power, such as those contained in the Bill of Rights, in
the presentment clause, and in Article Ill's mandatory clauses.
151 "There was an analogy between the Executive & Judiciary departments in
several respects." 2 M. FARRAND, supra note 50, at 34 (remarks of J.Madison)
(discussing the need for the two weaker branches to be independent of the legislature). Unlike the Articles of Confederation, where the Congress dominated the other
two branches, the Constitution created a national government with three independent
and co-equal branches. See supra notes 88-92 and accompanying text. Indeed, a
more equal division of power among the branches of the national government was
viewed by the Framers as an absolute prerequisite to giving more power to the
national government as a whole. See G. WOOD, supra note 9, at 547-53; THE
FEDERALIST Nos. 47-51 (J.Madison); id. Nos. 22, 84 (A. Hamilton).
"If congress possess any discretion on this subject, it is obvious that the judiciary,
as a co-ordinate department of the government, may, at the will of congress, be
annihilated, or stripped of all its important jurisdiction." 3 J. STORY, supra note 19,
§ 1584. Far from being a discretionary appurtenance that may, for all practical
purposes, be dismantled by Congress, the national judiciary constituted a central and
indispensable "balance-wheel" in the architecture of the Federalist Constitution, id.
§ 1615-the "keystone of the arch," 2 J. ELLIOT, supra note 80, at 257-58 (remarks
of Charles Pinckney at South Carolina ratifying convention).
Thus, far from placing sole reliance on a literalistic and wooden reading of the
isolated words-shall" and "all" in Article III, the neo-Federalist interpretation of
that Article is rooted in what should be a virtually self-evident structural principle:
the Constitution empowers national legislators to pass national laws; a national
executive to approve and execute them; and national-not state-judges to expound
them finally. A congressional effort to shift final interpretive authority from federal to
state courts should be seen as no less structurally anomalous than would a parallel
effort to shift the President's power to veto and enforce laws, or appoint high
executive officers, to state governors. See, I.N.S. v. Chadha, 103 S.Ct. 2764 (1983)
(striking down congressional action circumventing Presidential veto power); Buckley
v. Valeo, 424 U.S. 1, 124-36 (1975) (per curiam) (striking down congressional action
circumventing President's appointment power); See also W. RAWLE, A VIEW OF
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 200 (1825):
[T]he state tribunals are no part of the government of the United States. To
render the government of the United States dependent on them, would be
solecism almost as great as to leave out an executive power entirely, and to call
on the states alone to enforce the laws of the Union.
NEO-FEDERALIST VIEW
1985]
(b) Admiralty Cases. The next mandatory jurisidictional category concerns admiralty. Even under the decentralized Articles of Confederation, the
national courts had enjoyed jurisdiction over "piracies and felonies committed on the high seas [and] in all cases of capture."' I 2 At Philadelphia, this
jurisdiction was expanded to include "all Cases of admiralty and maritime
jurisdiction."15 3 According to Felix Frankfurter and James Landis, "[m]aritime commerce was then the jugular vein of the Thirteen states. The need for
a body of law applicable throughout the nation was recognized by every
shade of opinion in the Constitutional Convention." 1 4 In the battle over the
Judiciary Act of 1789, even dedicated Anti-Federalists like Richard Henry
Lee argued for creating lower federal courts-clearly non-obligatory under
the Constitution-to exercise admiralty jurisdiction.I5 5 According to Hamilton's FederalistNo. 80: "The most bigotted idolizers of state authority have
not thus far shewn a disposition to deny the national judiciary the cognizance
5 6
of maritime causes."1
As with "arising under" jurisdiction, the Framers intentionally created a
mandatory admiralty jurisdiction. The only express grant of admiralty power
to the national government appears in Article III, a fact that strongly suggests a special role for national judges in admiralty. Congress, on the other
hand, was given no explicit substantive power to legislate generally in
admiralty; it thus would have been especially peculiar to have committed the
scope of admiralty jurisdiction to the discretion of that branch.
Further, by providing for mandatory admiralty jurisdiction, the Framers
vested the federal courts with the full panoply of judicial powers over
national matters. The traditional triad of judicial proceedings familiar to the
Framers covered suits in law, equity, and admiralty.' 5 7 Mandatory "arising
under" jurisdiction and mandatory admiralty jurisdiction are thus perfect
complements: the former extends only to all cases "in Law and Equity,"
and the latter extends to all cases in "admiralty," completing the triad.
(c) Public Ambassador Cases. The final category of mandatory jurisdiction covers all cases affecting public ambassadors. The special status of this
category has long been recognized: even members of the Hart school acknowledge that such cases fall into the inviolable and irreducible core of the
Supreme Court's original jurisdiction, over which Congress has no discretion.' 5 s This power of the Supreme Court was perhaps designed as com152 Articles of Confederation, art. IX,
1.
153 U.S. CONST. art. III, § 2 (emphasis added).
154 F. FRANKFURTER & J. LANDIS, supra note 2, at 7; see
also J. McGOWAN, THE
ORGANIZATION OF THE JUDICIAL POWER OF THE UNITED STATES
155 See Warren, supra note 18, at 66-67.
THE
24 (1969).
FEDERALIST No. 80, at 538 (A. Hamilton) (J. Cooke ed. 1961).
3 J. STORY, supra note 19, § 1683: "[A] suit in the admiralty is not,
correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both."
158 See Hart, supra note 42, at 1372-73 (quoted supra note 47) (acknowledging
irreducible core of Supreme Court original jurisdiction).
156
157 See
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plementary to the President's power under Article II to receive "Ambassadors and other public Ministers": just as foreign dignitaries were given
access to the nation's chief executive, so were they given access to the
nation's chief tribunal.15 9
C. Empowering and Cabining Congress
Once the foregoing features of Article III are understood, the precise
contours of the final piece of the puzzle-the exceptions clause-are easy to
trace. After setting forth the original jurisdiction of the Supreme Court, 160
159 U.S. CONST. art. 1I, § 3; see also id. art. II § 2, cl. 2 (President shall have
power to appoint "Ambassadors, other public Ministers and Consuls"); 2 M. FARRAND, supra note 50, at 411, 533 (amending appointment clause language, rendering
it precisely parallel to language of Article III ambassador clause).
160 The complete sentence reads as follows: "Inall Cases affecting Ambassadors,
other public Ministers and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction." U.S. CONST. art. iIL, § 2, cl. 2. The
Supreme Court has not always been attentive to the nuances of language of this
scheme. In Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 495 (1971), for example,
the sentence was quoted: "In all Cases . . . in which a State shall be Party, the
supreme Court shall have original Jurisdiction." The ellipses here, however, distort
meaning. The referrent of the word "those" is not "all Cases" but simply "Cases."
It has long been established that the state-party cases within the original jurisdiction
of the Supreme Court are limited to those cases enumerated in the first sentence of
section 2. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 398 (1821); Duhne v. New
Jersey, 251 U.S. 311, 314 (1920). These cases, however, are only a subset of all cases
to which a state might be a party. It is clear, for example, that a suit between a state
and its own citizens does not fall within the original jurisdiction of the Supreme
Court.
Since "Cases . . .in which a State shall be Party" fall in the permissiye, not
mandatory tier of the Article III jurisdictional menu, Congress may abolish all federal
jurisdiction over them-including Supreme Court original jurisdiction. Currently, for
example, the Congress has exempted suits between a state and a foreign state-even
where the defendant consents to suit-from the original jurisdiction of the Supreme
Court. 28 U.S.C. § 1251 (1982). Such cases plainly could be heard originally by the
Supreme Court, if Congress so desired; these cases are therefore part of the permissive penumbra of Supreme Court original jurisdiction, over which Congress has
complete discretion. Congress may not, of course, similarly abolish the Court's core
original jurisdiction over "all Cases affecting Ambassadors, other public Ministers
and Consuls." See infra note 183.
The power of Congress to restrict the penumbral original jurisdiction of the Supreme Court is not conferred by the explicit exceptions clause-which applies only to
the Court's appellate jurisdiction-but rather arises from the fact that the Court's
original jurisdiction extends to some but not necessarily all, "Cases ... in which a
State shall be Party." Because Article III does not define with precision which of
these cases must be heard by a federal court-in sharp contrast to the command that
all mandatory-tier cases be so heard-the power to delineate the boundaries of
19851
NEO-FEDERALIST VIEW
Article III goes on to provide that "In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make. '"161 The opening words of this sentence establish as a starting
point that the Supreme Court shall have appellate jurisdiction in all casesin both the mandatory and permissive classes-except those earmarked for
original jurisdiction. The "exceptions" language makes clear that this starting point is merely a point of departure; it need not be the ending point of
Supreme Court appellate jurisdiction.
The congressional power to make exceptions, however, is strictly limited.
If at all possible, the exceptions clause must be read in a way that will
harmonize with, and not contradict, the earlier commands of Article III.
Thus, the power to make exceptions must be read in a way that does not
conflict with the mandate that the judicial power "shall be vested" in a
federal judiciary and "shall extend" to all cases in certain categories.
Such a reading is not hard to find. First, the congressional power to make
exceptions to the Supreme Court's appellate jurisdiction includes the power
to restrict the scope of federal jurisdiction by eliminating appeals in some or
all of the six permissive categories. State court judges may constitutionally
be left with the last word on these cases.1 62 Second, the exceptions power
includes the power to allocate federal jurisdiction among federal courts in
cases falling in the mandatory tier-that is, federal question and admiralty
1 63
cases.
Thus, Congress may make exceptions to the Supreme Court's appellate
jurisdiction in the mandatory categories, but only if it creates other Article
III tribunals with the power to hear all the excepted cases. Congress need
not create such courts in the first instance;1 64 plenary Supreme Court appellate jurisdiction of all federal question and admiralty cases decided by state
courts would satisfy the requirement that the "judicial Power shall extend to
all" these cases. 165 But if Congress seeks to make exceptions to the Su-
federal jurisdiction over these penumbral cases rests with Congress, as part of its
general constitutional power to "make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers, and all Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer
thereof." U.S. CONST. art. I, § 8, cl. 18 (emphasis added).
161 U.S. CONST. art. III, § 2, cl. 2.
162 Similarly, if Congress so desires, it may leave this last word to inferior federal
court judges. See infra notes 163-71 and accompanying text.
163 The third category falling in the mandatory tier, cases affecting public ambassadors, falls within the original jurisdiction of the Supreme Court. U.S. CONST. art.
III, § 2, cl. 2 (quoted supra note 160).
164 See supra note 93 and accompanying text.
165 An interesting question would be presented if Congress disestablished lower
federal courts and some state courts declined to entertain some cases falling within
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preme Court's appellate jurisdiction in these cases, then it must create
the mandatory judicial power, e.g., admiralty suits. The judicial power must extend
to these cases, but the original jurisdiction of the Supreme Court cannot be expanded
to take cognizance of them. This dilemma resembles the problem that Justice Story
thought he faced in Martin: either Congress must create at least one lower federal
court to fill the gap in original jurisdiction created by state court abdication, or the
state court must be compelled to hear these cases. See supra notes 13-23 and
accompanying text.
The Framers did not contemplate this dilemma, because they believed that state
courts of general jurisdiction would always be open to entertain all suits, and would
willingly do so. See THE FEDERALIST No. 82 (A. Hamilton) (quoted supra text
accompanying note 25); Hart, supra note 42, at 1401 (quoted supra text accompanying
note 47). Indeed, the Convention's states' rights champions were so sure of this that
they argued that Congress should not even be empowered to create lower federal
courts.
The proper resolution of this unforeseen dilemma depends on the state's reasons
for declining jurisdiction. If the state court is open to hear analogous suits under state
law, then refusal to entertain federal claims would amount to unconstitutional discrimination against federal rights. See Testa v. Katt, 330 U.S. 386 (1947). In such a
case, obligatory state court original jurisdiction-subject of course to Article III
review-is appropriate. Similarly, where a litigant is claiming that a state official has
acted or is acting lawlessly, the due process clause of the fourteenth amendment may
require that redress be available from the state judiciary. See General Oil v. Crain,
209 U.S. 211 (1908).
Where no discrimination or allegations of state misconduct are involved, constitutional and policy considerations suggest that Congress should not attempt to
oblige the state court to open its doors. The supremacy clause is inapplicable here
because it neither confers nor obliges state court jurisdiction; it simply requires that if
and when state courts take jurisdiction over a case, they follow the supreme law of
the land. See R. BERGER, supra note 50, at 244. Nor does Congress enjoy explicit
power to require state courts to take jurisdiction-in clear contrast to its explicit
Article I, § 8 power to establish "inferior" federal courts. See Brown v. Gerdes, 321
U.S. 178, 188 (1944) (Frankfurter, J., concurring) (Congress cannot confer jurisdiction on the New York courts). But see Sandalow, Henry v. Mississippi and the
Adequate State Ground: ProposalsjrA Revised Doctrine, 1965 Sup. CT. REV. 187,
207 n.84 (finding Congressional power to impose jurisdiction on state court in necessary and proper clause and in logic of Madisonian compromise).
The intrusiveness on state sovereignty that mandatory state court jurisdiction
would occasion is of course heightened by the fact that the raison d'etre of such
jurisdiction would be the compulsory reviewability of its exercise in federal tribunals.
That intrusiveness, the lack of explicit congressional power, and the easy constitutional alternative of creating inferior federal courts all suggest that serious tenth
amendment problems might result from obliging state court jurisdiction. Cf.
F.E.R.C. v. Mississippi, 456 U.S. 742, 774 (1982) (Powell, J.,dissenting in part)
("The general rule, bottomed deeply in belief in the importance of state control of
state judicial procedure, is that federal law takes state courts as it finds them.")
(quoting Hart, The Relations Between State and Federal Law, 54 COLUM. L. REV.
489, 508 (1954)). Thus, the better solution in such cases would be to create lower
NEO-FEDERALIST VIEW
1985]
another federal court to fill the gap in mandatory federal jurisdiction., 66 Such
a court could be an original tribunal, or could sit in direct appellate review
over state courts. Its decisions could, but need not, be reviewable by the
Supreme Court; the Article III mechanisms of appointment, tenure and
removal would guarantee sufficient independence, competence, and probity
in inferior federal judges. 167 Thus, the "exceptions" clause gives Congress
the power to structure the internal hierarchy of the federal judiciary by
shifting the final power to decide various mandatory cases from the Supreme
Court to other Article III judges-not to state judges, as the Hart school
16
would have it.
8
federal courts out of respect for state autonomy-an ironic twist on the states' rights
position at the Constitutional Convention. See Warren, supra note 26, at 592-94;
Note, supra note 33, at 967.
166 In the words of THE FEDERALIST No. 82, "appeal from the state courts to the
subordinate national tribunals .
.
. would admit of arrangements calculated to con-
tract the appellate jurisdiction of the supreme court." Id. at 557 (A. Hamilton) (J.
Cooke ed. 1961); see also THE FEDERALIST No. 81, at 546 (A. Hamilton) (J. Cooke
ed. 1961) ("The power of constituting inferior courts is evidently calculated to
obviate the necessity of having recourse to the supreme court in every case of federal
And if there was a necessity for confiding the original cognizance of
cognizance ....
causes arising under [federal] laws to [state courts,] there would be a correspondent
necessity for leaving the door of appeal as wide as possible.") (emphasis added); 1 M.
FARRAND, supra note 50, at 125 (remarks of Rufus King) (establishment of lower
federal courts in various states would obviate the need for extensive appeals to
Supreme Court in national capital); id. at 124 (remarks of James Madison) (to similar
effect); 3 J. ELLIOT, supra note 80, at 552-53 (remarks of John Marshall at Virginia
ratifying convention) (to similar effect); Webster, An Examination Into the Leading
Principles of the Federal Constitution Proposed By the Late Convention Held at
Philadelphia With Answers to the Principal Objections that Have Been Raised
Against The System, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES
153-54, supra note 147, (to similar effect).
167 See supra notes 102-15 and accompanying text.
168 It is important to recognize the self-executing character of Article iII. The
Supreme Court is created by the Constitution and derives the core of its jurisdiction
directly from it. Exceptions to its jurisdiction may be made by statute, but if such
statutes are unconstitutional, they are not law, and the Supreme Court therefore
reverts to its constitutional core of jurisdiction. See Sager, supra note 61, at 23-25.
Thus, if Congress were ever to enact ajurisdictional regime that opened an impermissible gap in mandatory federal jurisdiction, the proper "filling" of that gap would be
to resurrect the appellate jurisdiction of the Supreme Court, rather than extending the
jurisdiction of inferior federal courts. See White v. Fenner, 1 Mason 520, Fed. Cas.
No. 17,547 (C.C.R.I. 1818) (Story, J.) ("[l]t is somewhat singular the jurisdiction
actually conferred on the courts of the United States should have stopped so far short
of the constitutional extent [but this inferior federal] court has no jurisdiction which is
not given by some statute."). Perhaps precisely to preserve the self-executing quality
of Article III the Convention rejected by a 6-2 vote a proposed substitute to the
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The power to structure the federal judiciary is not trivial; it has real bite. It
comprehends the power to create an unreviewable Article III Tax Court-or
an Abortion Court.1 69 The power to choose which Article III judge shall
have the last word can be abused by Congress-much as the power to
"pack" the Supreme Court can be abused. Indeed, court-packing is simply
one dramatic illustration of Congress's clear power to choose which Article
1 70
III judges shall effectively wield final decisionmaking power.
exceptions clause that read: "In all the other cases before mentioned the Judicial
power shall be exercised in such manner as the Legislature shall direct." 2 M.
FARRAND, supra note 50, at 425, 431.
169 Of course, jurisdictional statutes-like all other laws-are subject to constitutional restrictions in the Bill of Rights, and elsewhere. Thus, the creation of an
Abortion Court might be challengeable as an unconstitutionally-motivated violation
of equal protection. See Tribe, JurisdictionalGerrymandering:Zoning Disfavored
Rights Out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129 (1981). In this
essay, however, 1 am concerned only with those restrictions on congressional power
that derive from Article 11Iitself.
I should note, however, that the sort of precise and technical parsing of Article
III offered in this essay, though appropriate given the precision and rigor of the
language of that Article itself and the technical nature of its subject, may be less
appropriate in seeking to interpret faithfully other sections of the Constitution. For
example, the fourteenth amendment has a distinctly different rhythm and feel: it
speaks in terms more lofty, general, and open-ended. Faithfulness to the text itself
seems to invite a higher level of interpretive generality and a different mode of legal
analysis. Accord J. ELY, supra note 52, at 11-41 (discussing Constitution's opentextured clauses); Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB.
AFF. 107, 107-08 (1976) (discussing need for mediating principles in interpreting
general language). Cf. National Mut. Ins. Co. v. Tidewater Transfer Co. 337 U.S.
582, 646 (1949) (Frankfurter, J., dissenting) (discussing near-mathematical precision
of Article III language).
170 Wherever an exception is constitutionally made, prior Supreme Court opinions
need not continue to be viewed as binding precedent. Article VI does not make the
Constitution, laws, and treaties of the United States, as interpreted only by the
Supreme Court, the supreme law of the land. Instead, different actors of government
are permitted to have different understandings of that supreme law. The genius of the
system is that because the several branches must cooperate before individuals may
be denied liberty or property, the broadest conception of the rights at stake usually
prevails. See supra notes 67-83 and accompanying text; infra notes 189-91 and
accompanying text.
Current rules of precedent are thus governed not by any inherent judicial hierarchy
in the structure of the Constitution or by the natural "supremacy" of the Supreme
Court, see supra notes 59-60 and accompanying text, but by the mechanisms of
review that Congress provides for: state courts are currently bound to follow Supreme Court precedent because of the simple fact that if they do not, they can be
reversed. Because federal Courts of Appeals do not directly review state decisions,
these courts' decisions are generally not considered binding precedent in state court.
Were Congress to redesign the appellate organizational chart, however, rules of
19851
NEO-FEDERALIST VIEW
Nevertheless, this power was necessary if the federal government were to
have the ability to adapt its judiciary to changing circumstances. Denial of
congressional power to structure the federal judiciary could have come
about at the Convention only at the cost of some prolixity-by specifying the
number of Supreme Court justices, the number of inferior federal tribunals,
the internal hierarchical structure, etc.-and great rigidity. 171 Perhaps
foreseeing that westward expansion, economic growth, changing technology, and alterations of state tribunal structures might require important
modifications in the structure of the national judiciary, the Framers committed significant discretion to Congress. This discretion, of course, was constrained by the all-important requirement that the court with the last word on
a federal question or admiralty issue had to be an Article III court.
III.
POST-CONSTITUTIONAL HISTORY: FEDERAL JURISDICTION IN
PRACTICE
A.
The Judiciary Act of 1789: Casting Light Backwards
The Supreme Court has long acknowledged the Judiciary Act of 1789 as
"[a] contemporaneous exposition of the constitution, certainly of not less
authority than [The Federalist], passed [by] many eminent members of the
Convention which formed the constitution." 1 72 The value of that Act as an
interpretive guide to the meaning of Article III has probably been somewhat
overstated, however, and the quasi-constitutional status enjoyed by the
Act1 73 does not seem fully warranted. Because the Anti-Federalist forces
wielded far more power in the first Congress than they had at Philadelphia, it
would not be surprising if the Act only imperfectly reflected the Federalist
vision that had earlier been crystallized in the Constitution.17 4 Nonetheless,
precedent would change accordingly-as well-illustrated by the workings of the
current Tax Court, where identical cases on the merits may receive different dispositions, because they are appealable to different federal circuits.
171 See 3 J. ELLIOT, supra note 80, at 517, 547 (remarks of Edmund Pendleton at
Virginia ratification convention) (noting constitutional straitjacket that would have
been created if Article III had specified the number of inferior federal courts); 3 J.
STORY, supra note 19, § 1591 (noting difficulties in constitutional prescription of the
number and internal hierarchy of federal courts); 3 M. FARRAND, supra note 50, at
392 (remarks of Gouveneur Morris to U.S. Senate) (to similar effect).
172 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821).
173 See Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 594 (1875) ("the
venerable Judiciary Act of 1789 was in some sort regarded as only less sacred than
the Constitution") (statement of the case); Wisconsin v. Pelican Ins. Co., 127 U.S.
265, 297 (1888) (the Judiciary Act of 1789 "was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that
instrument, and is contemporaneous and weighty evidence of its true meaning").
174 See Warren, supra note 18, at 53 (Act "pleased the Anti-Federalists more than
the Federalists"); Warren, supra note 26, at 548 n.8 (Act "reflected the views of the
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the Act remains a useful, though fallible, signpost to those seeking to
understand Article III. It is particularly noteworthy that the basic structure
with the interpretation of the judicial article
of the Act resonates 1 deeply
75
offered in this essay.
1. The Two-Tiered Model in Action
The first Judiciary Act created major exceptions to plenary federal jurisdiction over all party-defined cases.' 17 6 Where the Constitution permits the
federal judicial power to extend to "Controversies between citizens of
different States" the Act gave federal courts original jurisdiction only in
cases involving more than $500-no small sum in the eighteenth centuryand only where the suit was one between "a citizen of the State where the
suit is brought and a citizen of another state."''
77
Moreover, such jurisdic-
tion was nonexclusive. Removal from state court was permitted only in a
limited number of cases (again involving a $500 minimum amount) and no
diversity case proceeding to judgment in a state court was appealable to a
federal court. 178 Where the Constitution permitted jurisdiction in cases "to
which the United States shall be a Party," the Act conferred jurisdiction on
federal courts only where the United States was party-plaintiff, and then
only where "the matter in dispute" amounted to more than $100, exclusive
of costs. 179 Once again this jurisdiction was concurrent with the states, from
whose decisions no appeal to federal courts would lie. 180 In cases involving
land grants under different states, the federal courts were given power to
once again a
hear only a limited number of cases removed from state courts;
8
$500 minimum blocked the doors of the federal judiciary.' 1
founders only as to what it was feasible and politically advisable to enact at that
time").
175 A detailed review of the historical records surrounding the passage of the
Judiciary Act of 1789 and subsequent judiciary acts lies beyond the scope of this
essay. Such a review is unnecessary here because I do not seek to prove that
Congress has always self-consciously understood the limits of its power to regulate
jurisdiction. Rather, my contention is that the actions of Congress in passing jurisdictional statutes have always by and large comported with the basic requirements of
Article III with, perhaps, de minimis exceptions. At least intuitively, Congress seems
always largely to have understood and followed the commands of Article tlI. If
congressional actions speak louder than words then perhaps we have understood
Article III all along without realizing it.
176 See Martin, 14 U.S. (I Wheat.) at 336 (noting differential congressional treatment of permissive and mandatory tiers under Judiciary Act of 1789 and subsequent
statutes).
177 Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73 (emphasis added).
178
Id. § 12.
179 Id. § 9.
180 Id.
111 Id. § 12.
1985]
NEO-FEDERALIST VIEW
The Act's treatment of cases in the mandatory tier was far different.
Federal District Courts were vested with plenary and exclusive jurisdiction
to hear "all civil causes of admiralty and maritime jurisdiction" regardless of
the amount in controversy. 82 The Supreme Court was endowed under the
Act with exclusive jurisdiction over "all . . .suits or proceedings against
ambassadors, or other public ministers, or their domestics, or domestic
servants" and nonexclusive jurisdiction of "all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul shall
be a party.' '1 83 Lower federal courts were granted exclusive cognizance of
federal crimes, while the Supreme Court was given plenary appellate review,
under the famous section 25, over all state court decisions which defeated
rights set up by the appellant under the Constitution, laws or treaties of the
82
Id. § 9. The passage providing for exclusive and plenary admiralty jurisdiction
went on, in the famous § 9 "savings clause," to provide that preexisting common-law
remedies in maritime cases would continue to remain enforceable: "saving to suitors,
in all cases, the right of a common law remedy, where the common law is competent
to give it." Since this savings clause dealt only with common law, and not admiralty,
cases, it seems fully consistent with the neo-Federalist interpretation of Article III.
See 3 J. STORY, supra note 19, § 1666 n.3.
183 The Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73 (emphasis added). Section 9
of the same act provided for concurrent district court jurisdiction-exclusive of state
courts-in "all suits against consuls or vice-consuls." Despite the usage of the word
"all" in sections 9 and 13 and the seemingly plenary scope of both sections, the
non-exclusivity of suits brought by ambassadors, public ministers and consuls is
troubling under the neo-Federalist interpretation of Article III; in cases brought by
foreign dignitaries, the exercise of concurrent state court jurisdiction would not be
reviewable in any federal court. Thus, the Act seems to allow state courts the last
word over a subset of cases falling within the mandatory tier, thereby impermissibly
failing to vest the judicial power of the United States in Article II1 courts. See supra
notes 94-100 and accompanying text. Moreover, in several early and important cases,
the Supreme Court seemed to suggest that its original jurisdiction over all cases
affecting public ambassadors was made exclusive-even vis-a-vis other federal
courts-by the Constitution itself. See Osborn v. Bank of the United States, 22 U.S.
(9 Wheat.) 738, 820-21 (1824); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 396-97
(1821); Martin, 14 U.S. at 337-38; Marbury, 5 U.S. at 174; see also 3 J. STORY, supra
note 19, § 1699.
The first Congress, however, may have viewed the public ambassador clause of
Article III as designed solely for the protection of foreign dignitaries. Under this
interpretation of Article 111, although the Constitution conferred upon foreign dignitaries a right to an Article III forum, if they so desired, the right was waivable.
Thus, if an ambassador chose to bring suit in state court-or to submit to private
arbitration, for that matter-the first Congress may have felt that the mandate of
Article III would nonetheless be satisfied. Interestingly, the first Congress's interpretation of the public ambassador clause of Article II seems to parallel its interpretation of the "arising under" clause-which Congress apparently viewed as designed
solely for the protection of individual federal rights. See infra notes 189-95 and
accompanying text.
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United States .1 84 Thus, in the mandatory tier, state courts were not permitted to be the last word.
2.
The Parity of Federal Courts
In addition to its differential treatment of the two tiers of cases, the Act
also established important distinctions between Supreme Court review of
state court decisions on one hand, and of lower federal courts on the other.
No dollar minimum limited automatic appeals from state courts arising under
federal law, but appellate review over federal circuit courts was limited to
civil cases involving more than $2,000, and was nonexistent in criminal
cases. 8 5 The lesson of the Act seems clear: lower federal courts could be
trusted with the power of ultimate disposition of cases in the mandatory tier,
but state courts could not.
Indeed, the very structure of the circuit courts created by the Act
dramatized the structural equality of all federal judges. These courts were
staffed not by appointing separate Article III judges, but rather by forming
circuit panels in which Supreme Court justices and federal district judges sat
together, with each judge-regardless of status-given an equal vote. 8 6 The
Act created no analogous court pairing Supreme Court justices with state
judges.
3.
The Wrinkle of Section 25
In one important respect, however, the Judiciary Act may seem at first to
fall short of the constitutional requirement of plenary federal jurisdiction
over the mandatory tier: section 25 did not extend the jurisdiction of the
Supreme Court to all cases where the state court below had construed the
Constitution, laws, or treaties of the United States. Instead, it extended the
Court's jurisdiction only to those cases where the court below had defeated
a federal statutory, constitutional or treaty-based "title, right, privilege or
exemption" set up by appellant. 187 Such a limitation, however, is only
arguably an impermissible constriction of Article III's mandate that the
judicial power extend to all "arising under" cases. To require that the
appellant demonstrate that the court below defeated his federal rights is
perhaps only to require that the case, as postured for Supreme Court review,
arise under federal law-much as the "well-pleaded complaint" rule for
district court jurisdiction under 28 U.S.C. § 1331 requires that plaintiff's
complaint itself be based on federal law before it will be deemed to "arise
88
under" that law.'
The Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 73.
115 The Judiciary Act, however, did give the Supreme Court power to issue writs
of habeas corpus to test in some respects the legality of confinement. Id. § 14.
186 Id. § 4.
187 Id. § 25.
188 There is also an analogy here to the "mootness on appeal" doctrine. Just as a
184
1985]
NEO-FEDERALIST VIEW
This interpretation of "arising under" comports with the structure of
Article III. If the Article were viewed as mandating uniformity on federal
questions, then the restrictions of section 25 would be hard to defend, since
they would allow overbroad and incorrect applications of federal law to
stand, so long as no federal rights were violated. But Article III in fact
requires no such uniformity, as the permissibility of vesting unreviewable
jurisdiction in various lower federal courts illustrates. The inspiration behind
"arising under" jurisdiction was rooted not in uniformity but in the impor-
tance of protecting individual rights by providing an impartial and independent national tribunal.189 Where the state court decision violated no individual federal rights, but in fact gave the litigant raising a federal right more than
he was entitled to as an absolute minimum, no compelling need for federal
court supervision would arise. An analogy to the modem doctrine of "adequate and independent state grounds" suggests itself: a state court may not
use state law to circumvent federal rights,1 90 but may use state law to
supplement federal rights, unless doing so would violate some other federal
interest. 19
case must continue to remain "live" at the appellate level, so must it continue to
"arise under" federal law on appeal.
189 See THE FEDERALIST No. 78, at 527 (A. Hamilton) (J. Cooke ed. 1961) ("This
independence of the judges is equally requisite to guard the constitution and the
rights of individuals .... ") (emphasis added); see also Cohens v. Virginia, 19 U.S.
(6 Wheat) at 388 (Article III review designed for "the protection of individuals"); 5
WRITINGS OF JAMES MADISON, supra note 134, at 27 (letter from James Madison to
Thomas Jefferson) (discussing need to protect "private right") (quoted in full supra
note 134).
190 See Ward v. Love County, 253 U.S. 17, 22-23 (1920).
191 The analogy is strengthened by the fact that § 25 required that the basis for
appeal must appear "on the face of the record." The Judiciary Act of 1789, ch. 20,
§ 25, 1 Stat. 73. Whereas the Supreme Court today carefully reviews the opinion of
the court below to determine whether the decision was based on an overgenerous
reading of federal law or on supplemental state law, see, e.g., Michigan v. Long, 103
S. Ct. 3469 (1983); Minnesota v. National Tea, 309 U.S. 551 (1940), such an inquiry
was foreclosed by the Act of 1789. See Murdock v. Memphis, 87 U.S. (20 Wall.) 590,
633 (1875) (abandoning in the wake of statutory deletion of words "on the record"
the Court's longstanding rule that "the opinions of ... State courts cannot be looked
into to ascertain what was decided"); cf. L. TRIBE, supra note 59, at 31-32 (Supreme
Court should not automatically reverse state court decision resting on broader
understanding of Constitution and defeating no federal rights).
Moreover, state legislators, if they have a broader conception of a given federal or
constitutional right than the federal judiciary, may well feel bound by Article VI and
their individual oaths of office to enact protective-or repeal offending-state laws to
safeguard the right at stake. So long as they do not thereby offend any other federal
rights, their actions cannot be overturned by the federal judiciary-even though such
actions plainly rest upon a different understanding of federal rights than that entertained by federal courts. The first Congress may well have believed that the result
BOSTON UNIVERSITY LAW REVIEW
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Even if the plausible interpretation of "arising under" reflected in the Act
of 1789 is incorrect, the impermissible exception to the Supreme Court's
appellate jurisdiction was relatively minor. 192 In many cases the party
against whom a federal right was overexpansively construed could colorably
claim that such a misconstruction denied him a federal immunity. The limit
of a federal right often represents as important a federal interest as its
193
affirmative scope.
In any event, the basic point remains that the general structure of the
Judiciary Act strongly supports the neo-Federalist interpretation of Article
III presented here. Mandatory tier cases were treated differently than permissive tier cases, and appeals from state tribunals were treated differently
than those from lower federal courts.1 94 Even the wrinkle of section 25
should be no different if a state chose to act throughout its judiciary, instead of its
legislature, for the internal allocation of sovereign power within a state is not usually
a matter of concern for federal courts. See supra note 83; see also Highland Farms
Dairy Inc. v. Agnew, 300 U.S. 608, 612-13 (1937) ("How power shall be distributed
by a state among its governmental organs is commonly, if not always, a question for
the state itself."); Minnesota v Clover Leaf Creamery Co., 449 U.S. 456, 479-81
(1981) (Stevens, J., dissenting) ("I know of nothing in the Federal Constitution that
prohibits a State from giving lawmaking power to its courts. . . .Ifa state statute
expressly authorized a state tribunal to sit as a Council of Revision with full power to
modify or to amend the work product of its legislature, that statute would not violate
any federal rule of which I am aware."). It is interesting to note that if such a
philosophy did underlie the first Congress's actions, it is a philosophy in keeping with
the neo-Federalist interpretation's emphasis on the similarity of state judges and state
legislators. See supra notes 81-83, 115 and accompanying text; cf. Martin, 14 U.S. (1
Wheat.) at 343-44 (emphasizing parallel nature of federal court review of state
legislative, executive, and judicial action).
192 According to the tally of Felix Frankfurter and James Landis, the wrinkle of
§ 25 resulted in the denial of Supreme Court jurisdiction in only 16 cases from 1789 to
1914. F. FRANKFURTER & J. LANDIS, supra note 2, at 190 n.20 (citing cases).
193See Ratner, supra note 58, at 185; cf' Sager, supra note 61, at 52 n.104.
194See supra notes 176-85 and accompanying text.
In other of its specific details, the Judiciary Act is suspect. Although no one today
seriously contends that the Supreme Court's original jurisdiction over all public
ambassador cases may be restricted by Congress, § 13 of the Act did not use the
"affecting" formulation of Article iii, and is arguably unconstitutional in failing to
give the Court jurisdiction in all cases where ambassadors might be "affected," e.g.,
in some cases brought by an ambassador's domestic. A further minor anomaly of the
Judiciary Act is that § 11 purports to create federal jurisdiction in cases where "an
alien is a party" without specifying-as does Article Ill-that the other party must be
"a State, or the Citizens thereof." See Hodgson v. Bowerbank, 9 U.S. (5 Cranch)
303, 304 (1809) (giving narrowing construction to § 11); see also Marbury, 5 U.S. (1
Cranch) at 173-80 (holding technical detail of Judiciary Act unconstitutional). Indeed,
the entire structure of the Act of the court seems curious in that it purports to confer
jurisdiction, even where jurisdiction derives directly from the Constitution itself in
1985]
NEO-FEDERALIST VIEW
strongly confirms, rather than weakens, the neo-Federalist interpretation
offered here, for at worst, it suggests that Congress sought to obey the
obligation to vest plenary "arising under" jurisdiction in federal courts, but
plausibly misunderstood the exact purport of the words "arising under." 191
B.
Beyond 1789: The Evolution of Federal Jurisdiction
More recent jurisdictional regimes also harmonize with the neo-Federalist
interpretation. In 1875, lower federal courts were vested with general federal
question jurisdiction, reflecting increased recognition of the importance of
litigating federal issues in federal courts.' 96 The recent abolition of the
97
minimum dollar amount of 28 U.S.C. § 1331 carries on this tradition.
Federal courts continue to enjoy plenary jurisdiction in all admiralty
cases,1 98 and the Supreme Court's review power now extends to all cases
where state courts base their decisions on the Constitution, laws, or treaties
of the United States.' 99 In criminal cases, the historical expansion of federal
self-executing fashion. See supra note 168; cf. Durousseau v. United States, 10 U.S.
(6 Cranch) 307, 314 (1810):
When the first legislature of the union proceeded to carry the third article of the
constitution into effect [by enactment of the Judiciary Act of 1789], they must be
understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the supreme court. They have not, indeed,
made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described
affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not
comprehended within it.
See also Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 432 (1793) (separate opinion of
Iredell, J.) (suggesting that original jurisdiction of Supreme Court derives "from the
Legislature," and not, as Attorney General Edmund Randolph had argued, from the
Constitution itself).
195 Indeed, the precise meaning of the seemingly simple phrase "arising under"
has long perplexed even the most eminent of jurists and scholars. For a smattering of
the various interpretations of "arising under" that have been advanced, see Textile
Workers Union v. Lincoln Mills, 353 U.S. 448, 469-84 (1957) (Frankfurter, J.,
dissenting); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 739, 822-28
(1824) (Marshall, C.J.); id. at 871-903 (Johnson, J., dissenting); Martin, 14 U.S. (1
Wheat.) at 334-35, 341-42. See generally Mishkin, supra note 17.
196 Act of March 3, 1875, 18 Stat. 470.
197 See supra note 17.
'9' See 28 U.S.C. § 1333 (1982).
'99 See 28 U.S.C. § 1257 (1982); Act of Dec. 3, 1914, 38 Stat. 790 (extending
Supreme Court review to state court decisions upholding federal rights). As a matter
of logic, the arguments supporting the constitutionality of the wrinkle of § 25 of the
1789 Act do not necessarily imply that the extension of Supreme Court review in 1914
should have been held to be an unconstitutional expansion of the words "arising
under." Given the ambiguity of this term, and its susceptibility to two virtually
equally plausible interpretations, some jurists might coherently believe that the
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
habeas corpus has enabled lower federal courts to monitor more closely the
decisions of state courts entrenching on federal constitutional rights. In
contrast, diversity jurisdiction has not been similarly expanded: dollar limits
still bar access to federal district courts, diversity is defined narrowly with a
few exceptions, 0 0 and state court diversity judgments remain unreviewable
in federal court. Thus, more recent jurisdictional schemes have only sharpened the first judiciary act's differential treatment of mandatory and permissive cases.
Differential treatment of state judges and lower federal judges has also
been a hallmark of post-1789 jurisdictional regimes. Although Supreme
Court review under section 25 and its successors has always prevented state
courts from having the last word on federal questions (even in cases involving small dollar amounts), the Court was not granted similarly broad federal
question review over lower federal courts until 1925.201 Moreover, although
state court judges have never been put on court panels with Supreme Court
justices-or with any other federal judges for that matter-circuit courts
continued to pair Supreme Court justices with lower federal court judges
until these courts were abolished in 1911.202 Even today, although Supreme
Court justices no longer "ride circuit," jurisdictional statutes explicitly
judiciary should allow Congress to adopt either approach; since neither interpretation
of "arising under" is plainly better, neither congressional policy is plainly unconstitutional. See THE FEDERALIST No. 78, at 524 (A. Hamilton) (J. Cooke ed. 1961)
(judicial review will invalidate "all acts contrary to the manifest tenor of the constitution") (emphasis added); cf. supra note 86. See generally Thayer, The Origin and
Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893)
(courts should not overturn congressional action where constitutional question is
close). Another approach to the question would be to read the term "arising under"
as containing within itself a mandatory core protecting individual federal rights-like
§ 25-and a permissive penumbra to allow for uniformity of federal law-like the
1914 extension. Such an interpretation of "arising under" bears some resemblance to
the doctrine of "protective jurisdiction" whereby Congress may, at its discretion
extend the "arising under" jurisdiction of federal courts. See HART & WECHSLER,
supra note 2, at 859-70.
200 See, e.g., 28 U.S.C. § 1335 (1982) (interpleader statute). The diversity of
citizenship required for the purposes of the interpleader statute has been interpreted
more broadly than the "complete diversity" required by 28 U.S.C. § 1332 (1982).
Compare State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530-31 (1967)
(interpreting interpleader statute to require only "minimal diversity") with Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806) (interpreting diversity provision of
Judiciary Act of 1789, the predecessor of 28 U.S.C. § 1332, to require "complete
diversity").
20! The Supreme Court was not given general appellate jurisdiction over lower
federal courts in criminal cases until 1891. See supra note 63 and accompanying text.
On the civil side, jurisdictional dollar limits restricted appellate review of lower
federal courts until 1925. See HART AND WECHSLER, supra note 2, at 1539-42.
202 HART & WECHSLER, supra note 2, at 40-41.
1985]
NEO-FEDERALIST VIEW
20 3
permit them to sit on Court of Appeals panels with lower federal judges.
Another important development in the structure of federal jurisdiction
occurred at the turn of this century with the introduction and expansion of
certiorari. 20 4 The mere existence of this discretionary device does not appear to violate the letter of Article III, for the federal judiciary has continued
to retain the judicialpower to hear all mandatory cases--even though federal
judges may now decline to exercise that power in particular cases. As a
matter of separation of powers, there is a tremendous difference between a
court's decision to decline to hear a case that it is empowered to entertain,
and a congressional attempt to deny the court the power to hear that very
205
same case.
Nonetheless, recent developments may have resulted in a violation of the
underlying logic and spirit of Article III: since the Framers intended that
litigants in mandatory-tier cases would have a real opportunity to have their
case resolved in a federal tribunal, the system today seems to fall short by
denying many their real day in an Article III court. 20 6 Originally, it was
believed that the federal judiciary could hear all such cases--even without
the need of inferior federal courts. As Madison explained in the Virginia
ratification debate:
[T]he far greater number of cases-ninety-nine out of a hundred-will
remain with the state judiciaries. All controversies directly between
citizen and citizen will remain with the local courts. The number of
cases within the jurisdiction of [national] courts is very small when
20 7
compared to those in which the local tribunals will have cognizance.
For a while, Madison's predictions proved valid. Between 1789 and 1801, for
20
example, the Supreme Court disposed of fewer than 90 cases. 8
203
28 U.S.C. § 43(b) (1982).
See Act of March 3, 1891, 26 Stat. 826, 828 (introducing certiorari review over
lower federal courts); Act of Dec. 3, 1914, 38 Stat. 790 (permitting certiorari jurisdiction over state courts upholding federal rights); Act of Sept 6, 1916, 39 Stat. 726
(expanding certiorari and restricting appeals as of right).
204
See generally F.
FRANKFURTER & J. LANDIS, supra
note 2.
See supra notes 41, 96, 118. Thus, although Article III does in certain cases
create an individual right to a federal forum vis-h-vis Congress, it may not create such
an individual right vis-a-vis the judiciary. Cf. Redish, supra note 60, at 146 (quoted
supra text accompanying note 85).
206 As my reliance here on the "spirit" of Article III illustrates, I do not believe
that "spiritual" constitutional arguments are unconvincing per se, under interpretivist premises. In my discussion in Section I of this essay of the various "spiritof-Article III" formulations of earlier commentators like Professors Ratner and
Eisenberg, my point was not that "spiritual" arguments are generically unpersuasive, but rather that "spiritual" arguments that are not grounded in a proper understanding of text, history, and structure are not compelling.
207 3 J. ELLIOT, supra note 80, at 537-38. See generally Eisenberg, supra note 49,
at 508-10.
208 J. GOEBEL, supra note 50, at 802-13.
205
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[Vol. 65: 205
Today, however, the picture is far different. Much previously-local law
has now been federalized 20 9 or constitutionalized, 210 mushrooming the number of cases "arising under" federal law. Because of restrictions on district
court jurisdiction-created by the "well-pleaded complaint" rule and limitations on removal-many federal cases must be litigated in state trial
courts. Currently, only one federal court-the Supreme Court-sits in direct
appellate review over these courts. In 1983, the Supreme Court disposed of
184 cases with written opinions, and another 81 by memorandum-a significant number, but only a fraction of the more than 4,000 cases brought
before it.21 For a great many parties asserting federal rights, certiorari to the
Supreme Court was their only opportunity to get into federal court, and most
went away disappointed.
Since the Supreme Court did have the theoretical power to hear their suits
(and indeed did actually review and dispose of these suits, however perfunctorily) these litigants arguably received their legal due; yet the practical
inability of the Court to hear all these cases, many of them probably
meritorious, seems at war with the spirit of Article 1112- 2 -much as would a
congressional refusal to provide enough money for federal court clerical
staff, for example. 213 Similarly, a congressional refusal to pay the rent on
209
210
2"
E.g., labor law, securities law, and environmental law.
E.g., criminal procedure, commercial speech, and libel law.
The Supreme Court, 1983 Term, 98 HARV. L. REV. 311 (1984) (compiling
Supreme Court docket statistics).
CJ: Redish, supra note 60, at 153-54 (noting that if a right to a federal forum
does exist, the opportunity for federal review must be real, not technical and hollow).
212
213 It is not my contention that the expansion of federal question litigation is a
changed circumstance that repeals pro tanto the "Madisonian compromise," thereby
making lower federal courts constitutionally obligatory in today's world. Cf. Eisenberg, supra note 49 (discussed supra, at notes 49-52 and accompanying text). Rather,
I am arguing that given the inability of the Supreme Court alone, as currently
constituted, to hear all mandatory cases on the merits, even if it wanted to, Congress
must create lower federal courts. Even today, however, Congress may constitutionally exercise its power under the "Madisonian compromise" to abolish lower federal
courts-but only if it provides for effective Supreme Court review of mandatory
cases. This could be done, for example, by significantly expanding the size of the high
court, and having three-member panels review state decisions. En banc sittings
would be permitted to resolve interpanel conflicts. Although it may seem anomalous
to suggest such a structure for the Supreme Court, the anomaly exists only if we
confuse the historically familiar with the constitutionally necessary. See supra note
115. Although the Supreme Court has never yet been organized along the lines
suggested above-rather, every Supreme Court sitting has thus far been en bancsuch a structure is in fact the structure governing federal Courts of Appeal today.
Thus, I suggest that by limiting the size of the Supreme Court, Congress has promulgated a powerful de facto exception to the Supreme Court's appellate jurisdiction-as
if Congress had explicitly told the Court it could only hear one out of every ten
mandatory cases. Such a de facto exception satisfies the spirit of Article IlI only if
some other federal court is open to hear all excepted cases at trial or on appeal. See
supra note 163-71 and accompanying text.
1985]
NEO-FEDERA LIST VIEW
the White House, or an attempt to slash cabinet officers' salaries, would
seem to offend the spirit, if not the letter, of Article II.21
IV.
CURRENT PROPOSALS
The current state of federal jurisdiction thus appears to present a situation
that, while technically in conformity with Article III's strictures, narrowly
construed, nonetheless seems intdnsion with the broader principles underlying that Article. That tension, however, could easily be cured by congressional action.
One solution would take up the slack created by Supreme Court certiorari
by allowing inferior federal courts to sit in appellate review over state court
decisions, following the current de facto regime in federal habeas corpus.
Such a solution would not necessarily require a dramatic swelling of the
ranks of the federal bench. 21 5 The increase in the caseload of the federal
judiciary could be at least partially offset by restricting nonessential diversity jurisdiction. 21 6 Once Article III is properly understood, it is clear that
permissive diversity cases should yield to mandatory federal question jurisdiction.
If necessary, further federal judicial resources could be freed up by replacing the current appeal-as-of-right from federal district court decisions 21 7 with
a system of discretionary review by federal courts of appeals. Again, a
proper understanding of Article III makes clear the current anomaly of
lavishing federal appellate resources on cases in which litigants have already
had one day in federal court, when so many other litigants who begin in state
court never get a real opportunity for review by any Article III decisionmaker.
Another possible approach would involve amending the "well-pleaded
complaint" rule to allow district court jurisdiction under 28 U.S.C. § 1331
whenever a federal question was presented by any pleading-whether a
complaint, answer, reply, counterclaim, cross-claim, etc. There are two
major problems with such an approach, however. First, it would involve
significant judicial inefficiencies. 18 Many cases that began as purely stateSee supra notes 151, 159 and accompanying text (discussing analogies between
judicial and executive branches).
21- Many of those generally sympathetic to the federal judiciary have expressed
concern that overexpansion of the federal bench could weaken the prestige currently
enjoyed by Article III judges-prestige that serves both to legitimate judicial decisions and to attract qualified candidates to the federal bench. See, e.g., H.
FRIENDLY, supra note 131, at 30; Eisenberg, supra note 49, at 515.
216 For a good discussion that seeks to separate the core diversity jurisdiction that
should be retained (such as federal interpleader) from the nonessential diversity
jurisdiction that should be abolished, see H. FRIENDLY, supra note 131, at 139-52.
217 See 28 U.S.C. § 1291 (1982).
218 See generally Bator, The State Courts and FederalConstitional Litigation, 22
214
WM. & MARY L. REV. 605 (1981).
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
law cases in state courts would need to be removed-perhaps after significant investments of time by state judges-to federal court because a
federal question was presented in later rounds of the pleadings. The waste of
state judicial resources created by removal is greater than that which would
arise under federal appellate review. In the latter case, the time, energy, and
deliberations of the state judge would not be thrown away, but would instead
be crystallized in the judgment and opinion to be reviewed by the appellate
court. Moreover, appellate review economizes federal judicial resources.
Whereas district court jurisdiction may often oblige a federal judge to decide
state law claims pendent to the federal claims, federal appellate review
focuses only on the federal questions decided by the lower state court. Thus,
federal appellate review takes advantage of the efficiencies of specialization
of labor by allowing each set of courts to do what it does best: state courts
are the last word on state law; federal courts, on federal law.
Second, even an expanded district court jurisdiction could not realistically
encompass all federal questions. In civil cases, many federal questions might
not appear in the pleadings, but would arise only when issue is joined at trial.
In criminal cases, truly plenary federal question jurisdiction in district courts
would require that virtually every state crime be prosecuted in federal
court-clearly a politically unrealistic option-because virtually every criminal trial involves some federal constitutional question.
Absolutely comprehensive federal question jurisdiction by federal trial
courts thus appears to be impracticable, unwieldy, and politically infeasible.
The sounder approach, therefore, would be to continue to use state courts as
original tribunals, and to subject their decisions on federal questions to
real-not perfunctory-appellate review by Article III courts. Since the
Supreme Court alone, as currently constituted, cannot effectively discharge
that function, review by inferior federal courts should be given strong
consideration. 21 9
V.
CONCLUSION
I began this essay by noting the two competing schools of thought on
Article III, championed by Joseph Story and Henry Hart, respectively. In
the academy today, however, it might appear as if the "competition" between these two schools is all but over: in many circles, the Hart school
enjoys the status of virtual orthodoxy. Indeed, in a recent symposium, Paul
Bator-a powerful spokesman for the Hart school-has gone so far as to
claim:
The argument advanced by Justice Story, that article III requires the
Congress to vest the entire quantum of federal judicial power in federal
courts, has been rejected by an unbroken line of Congressional and
219
The other, more radical, solution to the current de facto gap in the federal
question jurisdiction is to restructure the Supreme Court. See supra note 213.
1985]
NEO-FEDERALIST VIEW
Supreme Court precedents running from the time of the first220Congress to
the present. It no longer deserves to be taken seriously.
Although perhaps correct concerning Supreme Court dicta,2 2 1 Professor
Bator is on shaky ground in making these sweeping assertions. Story's
argument in Martin is the font of two important insights about Article III.
First, the Constitution clearly does limit in important ways congressional
power to shift ultimate judicial power from federal to state courts. Second,
the first three categories of cases listed in Article III are structurally different
220
Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27
VILL. L. REV. 1030, 1035 (1982). Interestingly, however, Bator seems to concede a
few pages later that enormous structural and historical anomalies lie at the core of the
Hart school's position:
The "states rights" argument at the Constitutional Convention was that there
was no need for lower federal courts precisely because the appellate jurisdiction
of the Supreme Court would provide sufficient assurance of the supremacy and
uniformity of federal law in cases decided by the state courts. It was the premise
of this argument that the Supreme Court would have the power to review cases
originating in the state courts concerning issues of federal law. It was plainly not
contemplated that the system could work effectively with the state courts as
courts of last resort on issues of federal law.
Id. at 1038-39 (emphasis in original); see supra note 143 and accompanying text.
Because he fails to appreciate the import of Article III, taken as a whole-that is,
because he fails to see how the permissive exceptions and inferior courts clauses of
Article III are constrained by other, mandatory clauses-Bator is driven to accept
the Hart school doctrine on Article III despite its conceded quirks. Fortunately, the
quirks do not inhere in Article III itself, but only in the Hart school's interpretive
gloss. Ours is a perfectly good Constitution if we know how to interpret it.
221 1 shall not offer here a detailed account of the various major Supreme Court
pronouncements on congressional jurisdiction-stripping for three main reasons.
First, many of the "classic" cases have been well presented elsewhere. See e.g., Van
Alstyne, A Critical Guide to Ex parte McCardle, 15 ARZ. L. REV. 229 (1973).
Second, since congressional jurisdictional regimes have always rather closely approximated the mandates of Article III, most of the "classic" Supreme Court
expositions are dicta. Third, it is largely my purpose here to establish that many of
these expositions are incorrect (or at least sloppily overbroad and misleading) dicta,
for they seem to concede to Congress more authority over federal jurisdiction than
the text and structure of the Constitution permit. Of course, under classic interpretivist premises, see supra note 9, even Supreme Court case law cannot repeal the
plain requirements of the Constitution itself; and in constitutional cases, even stare
decisis is of only limited value. See Weber v. Aetna Casualty & Surety Co., 406 U.S.
164, 177 (1972) (Rehnquist, J., dissenting); Boys' Markets, Inc. v. Retail Clerks
Union, 398 U.S. 235,259 (1970) (Black, J., dissenting). Thus, like the Judiciary Act of
1789, Supreme Court case law is for an interpretivist valuable mainly for the historical light it casts on constitutional principles. Accordingly, I have focused here on the
most important and comprehensive early Supreme Court exposition of Article III:
Martin v. Hunter's Lessee.
BOSTON UNIVERSITY LAW REVIEW
[Vol. 65: 205
from the last six. 222 Federal and state judges are not created equal; nor were
the jurisdictional categories in Article III. Bator and the Hart school notwithstanding, most of Story's argument in Martin deserves to be taken very
seriously indeed.
In this essay, I have attempted to do just that-to take Story's Federalist
vision of Article III seriously. Yet I have not abandoned all tenets of the
Hart school orthodoxy. Thugs, my neo-Federalist synthesis of Article III
retains important elements of both the Hart and Story traditions. Unlike
Story's exposition in Martin, the neo-Federalist interpretation is faithful to
the Madisonian compromise and recognizes the concurrent general jurisdiction of state trial courts celebrated by Hamilton's FederalistNo. 82. Unlike
Hart's Dialogue, the neo-Federalist interpretation recognizes the two-tiered
structure of federal jurisdiction, the structural parity of federal judges, and
the constitutional inadequacy of state judges in federal question cases.
Although Congress enjoys considerable power to regulate federal jurisdiction, that power is nontheless strictly bounded. All cases arising under
federal law-whether in law, equity, or admiralty-must be capable of
final resolution by a federal judge. Our Federalist Constitution demands
nothing less.
It is noteworthy that Story was able to discern the critical textual distinction
between the first three jurisdictional categories and the last six without the benefit of
the then unpublished records of the Philadelphia Convention, which strongly corroborate the importance and intentionality of that distinction. Even had these records
been available to Story, however, he probably would have placed little weight on
them, as his jurisprudence relied on the plain meaning of constitutional text, and
disdained inquiry into the subjective and secret intents of the framers. See 1 J.
STORY, supra note 19, § 451; Bobbitt, ConstitutionalFate, 58 TEX. L. REV. 695, 707
(1980).
Even more remarkable than Story's keen attention to textual detail concerning the
word "all," however, is the stunning failure of subsequent scholars to reanalyze the
critical distinction Story noted in the light of the now-available records of the
Constitutional Convention. This failure is all the more amazing because this distinc222
tion resonates deeply with common sense intuitions that federal questions are different from diversity cases; intuitively, the former should be decided by federal judges,
whereas the latter need not be. See, e.g., H. FRIENDLY, supra note 131. Similarly,
many today recognize the sociological disparity between federal and state judges,
see, e.g., Neuborne, supra note 115, yet few have attempted to resurrect Martin,
which strongly emphasized that disparity. Indeed, Professor Sager goes to elaborate
lengths to construct an elegant structural argument about Article III when a far more
simple textual argument-based on Martin-is at hand: Sager's argument that some
Article III court must be open to hear all constitutional cases, Sager, supra note 61, at
56-57, is a logical subset of Story's textual argument, as modified here.
VOLUME 65
MARCH 1985
NUMBER 2
BOSTON UNIVERSITY LAW REVIEW
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H.
COHEN
BARBARA D. DAVIS
ALAN C. EDERER
KAREN E. FRIEDMAN
S. GOETZ
H. GOODMAN
SENAH E. GREEN
PAUL S. GROBMAN
MICHAEL
MARK
W. HALSTON
A. HEDAL
RICHARD
JOSEPH HERLIHY
MARGARET CARMODYJENKINS
ELIZABETH JEAN KUCZYNSKI
MARK LANGFAN
ANDREW L. MATZ
BRUCE S. MEYER
E.
ROMANIW
VALERIE T. RoSENSON
MARK J. SEIDEMANN
PETRA SHATTUCK
MICHAEL J. SINGER
PAUL SPITZ
RICHARD STERN
ROBERT
P.
TEDESCO
ROBERT H. MILLER
WILLIAM R. MOORMAN, JR.
BETH TOMASELLO
LORI VENDINELLO
SARAH E. C. MOYNIHAN
STEPHEN M. ZIDE
DANIEL F. PRIMER
Faculty Advisor
WILLIAM E. RYCKMAN,
Publications Assistant
M. ELLEN PEEBLES
JR.